Part II – Interpretation and application



You have the right to be free from discrimination based on age if you are at least 18 years old.[19]

In services, goods, facilities, contracts and membership in unions, you can file a claim as long as you are at least 18, except for services related to liquor and tobacco for which the minimum age is 19.

Parents or guardians can file for their minor children. For example, where a child with a disability is not receiving the support and assistance she needs to access education services, her parents can make a claim on her behalf.

“Golden age specials” or “seniors’ discounts” for persons over age 65 are permissible.

In housing, you must be 18 years old, unless you have formally withdrawn from the legal control of your parents. In that case, you are protected if you are 16 or 17 years old.

Refusing to sell or lease living accommodation to families with children under age 18 is not allowed.


The Code does not list all the conditions that may be considered a disability.[20] “Disability” should be interpreted in broad terms. It includes both present and past conditions, instances where a person is perceived or “seen” to have a disability, as well as a perception that a -person may develop a disability in the future. For example, if an employer does not hire a job applicant because she thinks he has a mental disorder, the job applicant can make a human rights claim that he was discriminated against based on disability. It does not matter that the job applicant does not, in fact, have a mental disorder since the employer perceives or sees him to have a disability.

The Code clearly protects people against discrimination based on mental, developmental and learning disabilities. Students with disabilities have the right to be free from discrimination in school.[21]

A disability may be the result of a physical limitation, an ailment, a perceived limitation or a combination of all these factors. The focus is on the effects of the distinction, preference or exclusion experienced by the person and not on proof of physical limitations or the presence of an ailment. Discrimination may also be based on perceptions, myths and stereotypes about a disability. Even minor illnesses or infirmities can be “disabilities” if a person can show that they were treated unfairly because of the perception of a disability.

Disabilities that are not obvious to the average observer (also known as non-evident disabilities) are also protected. Examples of non-evident disabilities include chronic fatigue syndrome, back pain, and  certain forms of mental illness. Other disabilities may remain hidden because they only flare up occasionally (such as epilepsy or environmental sensitivities).

If you have claimed or received benefits under the Workplace Safety and Insurance Act, this would be considered a disability. You do not have to prove that your condition is a disability.

If you have a disability that requires accommodation at work, you must provide enough information to allow your employer to help you. This should include information from a qualified professional confirming that you have a disability and stating the assistance you need. For example, you do not want to tell your employer about your heart condition, but you need certain parts of your job changed to accommodate this disability. When your employer asks for proof, you can ask your doctor for a letter saying that you have a medical condition (without being specific) that does not allow you to do certain things, such as climb stairs or lift heavy objects.


“Equal” means achieving equal outcomes and substantive equality. Sometimes this means treating people the same way, but it may also mean treating people differently. For example, building a ramp for a person with a disability is not “equal treatment” in the strict sense because a ramp is something built especially for persons with disabilities; but it is a requirement for a person who uses a wheelchair to have equal access to a building.

“Equal” means that when you have been discriminated against because of a ground in the Code, you are entitled to the Code’s protection. You do not actually have to prove that you are racialized or gay or that you have a disability, etc., as long as you can show that the treatment was because of a ground in the Code.

For example, two women are dancing together in a bar and the owner interrupts them and asks them to leave. This happens after one of the women overhears the owner say, “I don’t want people to think this is a gay bar.” Even if the women are not lesbians, they are able to make a human rights claim because they can show that they have been discriminated against because of their perceived sexual orientation.

Family status

This definition includes both biological and adoptive parents, as well as someone who acts in the position of a parent to a child, such as a legal guardian.[22]

Human rights protections for family status include protection against discrimination based on the particular identity of a family member.[23] For example, it would be discrimination for an employer to take negative actions towards an employee because of personal animosity towards that person’s child.

This ground is often raised in human rights claims involving housing, when landlords or property managers limit a housing development or apartment to adults only or show a preference for married couples over single parents. This is discrimination and is not allowed under the Code.

This may also be the ground of discrimination when a woman is refused housing or other services or facilities because she is a lone parent or because she is breastfeeding [24]

Group insurance

You are protected from discrimination in the terms of your group insurance plan. This is usually but not always in relation to employment.

However, an insurance company can make a reasonable preference, distinction or exclusion because of age, sex, marital status, family status or disability.[25] For example, auto insurance companies classify young males differently than other persons based on their age and sex. This differential treatment has been found to be reasonable and genuine because statistics show that young males are involved in proportionally more (and more serious) accidents than other drivers and because there is no other practical alternative to this type of classification.


Harassment means statements or actions that are not welcome. The other person may know this because you told them that the behaviour is not welcome. Or the conduct may be so distressing that an objective person would agree that the behaviour was unwelcome.

Harassment requires a “course of conduct,” which means that a pattern of behaviour or more than one incident is usually required. However, one incident may be enough to support a finding of harassment where the incident creates a poisoned environment.

Marital status

Marital status includes being married or in a common-law relationship. Partnerships can be either same-sex or opposite sex. Marital status also includes being single, widowed, divorced or separated. For example, you cannot be refused employment because you may or may not be married.

Human rights protections for marital status include protection against discrimination based on the identity of a person’s spouse.[26] For example, it would be discrimination if an employer takes negative actions towards an employee because of personal animosity towards that person’s spouse.

Record of offences

This ground only applies to employment situations.

You cannot be discriminated against in your job because of:

  • pardoned offences under federal law, such as the Criminal Code
  • convictions under provincial law, such as the Highway Traffic Act.

This protection does not apply to offences where there has only been a charge. It only applies to convictions.

When you apply for a job, you cannot be asked whether you have any kind of criminal record. However, you can be asked if you have been convicted of a federal offence for which you have not received a pardon. You can also be asked during an interview whether you are bondable or have a driver’s licence, but only where it is an essential requirement for the job.


Examples of services include:

  • stores, restaurants and bars
  • hospitals and health services
  • schools, universities and colleges
  • public places, amenities and utilities such as recreation centres, public washrooms, shopping malls and parks
  • services and programs provided by municipal and provincial governments, including social assistance and benefits, and public transit
  • services provided by insurance companies
  • classified ads in a newspaper.

Under the Code, services do not include a levy, fee, tax or periodic payment imposed by law.


“Spouse” is a person married to or in a common-law relationship with another person.

This definition includes both same-sex and opposite-sex partnerships.

[19] For more detailed information, see the OHRC’s Policy on discrimination against older persons because of age (2007).

[20] For more detailed information on discrimination on the basis of disability and the duty to accommodate the needs of people who have disabilities, please see the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate (2001).

[21] For more detailed information, please see the Commission’s Guidelines on Accessible Education (2004).

[22] For more information on discrimination on the basis of family status, see the OHRC’s Policy and guidelines on discrimination because of family status (2007).

[23] See Devaney v. ZRV Holdings Ltd., (2012) HRTO 1590 at 113 (CanLII) and B. v. Ontario (Human Rights Commission), (2002) SCC 66 at 58 (CanLII).

[24] For more information on discrimination because of breastfeeding, see the OHRC’s Policy on discrimination because of pregnancy and breastfeeding (2008).

[25] See section 22 of the Code.

[26] See B. v. Ontario (Human Rights Commission), (2002) (2002) SCC 66 at 58 (CanLII) and Devaney v. ZRV Holdings Ltd., (2012) HRTO 1590 at 113 (CanLII)



The Code protects a woman because she is or was pregnant, may become pregnant, has just had a baby or other pregnancy-related situations.[27] Pregnancy includes the process of having a baby from conception up to the period following childbirth. It also includes the post-delivery period and breastfeeding.

The term “pregnancy” takes into account all the special needs and circumstances of a pregnant woman and recognizes that the experiences of women will differ. Special needs can be related to:

  • miscarriage
  • abortion
  • complications because of pregnancy or childbirth
  • conditions that result directly or indirectly from an abortion/miscarriage
  • recovery from childbirth
  • breastfeeding.

You have a right to be treated fairly at work. For example, during a job interview, an employer cannot ask:

  • “Are you pregnant?”
  • “Do you have a family?”
  • “Do you plan to have a family?”

It is contrary to the Code to fire you, demote you or lay you off (even with notice) because you are or may become pregnant.

If you are or may become pregnant, you have the right to keep your job and not to be passed over for benefits and opportunities, such as:

  • being hired or promoted
  • training
  • assignments to important or more challenging projects
  • resuming your job after your pregnancy or parental leave.

You also have a right to request changes to your job duties or rules that affect you for the sake of your health when you are pregnant. Your employer should accommodate your needs, unless doing so would cause undue hardship.

The rules about pregnancy leave, parental leave and maternity benefits are set out by the Employment Standards Branch of the Ministry of Labour (Ontario)[28] and by Service Canada (formerly Human Resources Development Canada).[29]

You have the right to use services, such as restaurants, malls or other public areas, and to breastfeed your child in public without being disturbed or harassed or asked to move to a more “discreet” area. You are also protected from discrimination in the areas of housing, contracts and membership in trade unions.

[27] For more detailed information, see the OHRC’s Policy on discrimination because of pregnancy and breastfeeding (2008).


Code Grounds: 

Constructive discrimination

Sometimes a rule or practice unintentionally singles out a group of people and results in unequal treatment. This type of unintentional discrimination is called “constructive” or “adverse effect” discrimination.

For example, an employer has a rule that male employees must be clean-shaven. Using this rule, the employer refuses to hire a Sikh man who, according to his religion, is not allowed to shave. The rule is not “intended” to exclude Sikh men from a job, but it has this effect. Unless an employer can show that a change or exception to the rule would be too costly or create a health and safety risk, the employer should agree to change the rule.

The Supreme Court of Canada has set out a framework for examining whether the person responsible for accommodation has met the duty to accommodate.[30] Where it is established that a standard, factor, requirement or rule results in discrimination, the person responsible for accommodation must show that the standard, factor, requirement or rule:

  1. was adopted for a purpose that is rationally connected to the function being performed
  2. was adopted in good faith
  3. is reasonably necessary to accomplish its goal or purpose, in the sense that it is impossible to accommodate the claimant without undue hardship.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship. This approach is preferable to keeping discriminatory standards that need ongoing  accommodation for people who cannot meet them.

[30] See British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999) 3 S.C.R. 3 (CanLII) [“Meiorin”]. Also, see Hydro-Québec v. Syndicat des employé-e-s de techniques preofessionnelles et de bureau d’Hydro-Québec, section locale 2000, (2008) SCC 43 (CanLII) for the Supreme Court of Canada’s recent comments on what the third part of this test means, in a practical sense, in the context of a disability accommodation in the workplace.


Discrimination Type: 

Discrimination because of association

You cannot be discriminated against because of your association, relationship or dealings with another person identified by a Code ground. You have this protection whether or not you are identified by a ground in the Code.


  • A restaurant owner refuses to serve you because you are with someone who is a member of a racialized group.
  • A landlord refuses to rent an apartment to you because your co-tenant is a woman with a young child.

Announced intention to discriminate

It is illegal to display or publish certain kinds of discriminatory material. For the Code to apply, the item must be a notice, sign, symbol, emblem or other similar representation (such as a cartoon). It must show intent to discriminate or harass, or an intent to provoke others to discriminate or harass in employment, services or housing.

For example, a landlord distributes a button that states “do not rent to immigrants” at a community meeting on housing issues. This would be a public display of a notice that intends to promote discrimination against people in housing because of their race, ancestry, colour, ethnic origin or place of origin.

Otherwise, section 13 of the Code is not intended to interfere with freedom of expression. Newspaper opinions and editorials, for example, are protected under freedom of expression. While some forms of expression may seem distasteful and offensive, this is not discrimination under the Code.

Special programs

This section allows organizations and employers to create temporary special measures on a voluntary basis. The purpose of a special program is to help create opportunities for people who experience discrimination, economic hardship and disadvantage.[31]

Landlords, service providers and other organizations may start their own special programs. No special or advance approval by the OHRC is needed. The OHRC encourages the development of special programs as an effective way to help reduce discrimination and address historical disadvantage. Organizations can learn more about how to develop special programs from the OHRC’s publication Special programs and the Ontario Human Rights Code – A self-help guide.

To be a special program, the program must meet one of the following conditions:

  • it must relieve hardship or economic disadvantage, or
  • help disadvantaged people achieve, or try to achieve, equal opportunity, or
  • help eliminate discrimination.

If a special program does not meet one of these conditions, it may be deemed invalid by the OHRC, the Tribunal or another judicial body.

Examples of special programs include:

  • programs designed to promote the hiring and advancement of women in a welding shop
  • programs designed to encourage the enrolment of Aboriginal students in a university.

An organization may be required to create a special program as a result of a human rights claim made against them.

Special programs must be developed carefully and with clear reasons about why a particular group is chosen for special assistance.

[31] See the OHRC’s Special programs and the Ontario Human Rights Code – A self-help guide (2010).

Canadian citizenship

You cannot be discriminated against because of your citizenship, except where Canadian citizenship is a legal requirement to get a job or get certain services. For example, since the law requires that you must be a Canadian citizen to vote in a municipal or provincial election, this requirement is not discrimination.

There is no discrimination if Canadian citizenship or permanent residency is required to take part in a cultural, educational, union or sporting activity. For example, certain competitive sports require that participants be either Canadian citizens or permanent residents.

The Code also allows organizations to require Chief Executive Officers (CEOs) or other senior executives to meet residence requirements.

Code Grounds: 

Disability [32]

Accommodation and undue hardship

There is a test to decide if the Code requires an employer, service provider (such as the TTC), landlord or other person to accommodate a person with a disability. In this section, “accommodation” means meeting the needs of a person with a disability.

If you are a person with a disability, and you are able to do the job or meet the requirements once your needs are met, there is a duty to accommodate those needs unless they are unduly costly or would create real health or safety dangers. The employer, landlord or service provider should consider outside sources of funding to accommodate your needs if not otherwise affordable.

You are responsible for certain things, such as making your needs known, giving information about your restrictions or limitations, taking part in discussions about possible accommodation solutions, and working with the accommodation provider on an ongoing basis to manage the accommodation process.

Your employer (or housing provider, etc.) is responsible for other things, including accepting your requests in good faith (unless there are legitimate reasons not to), getting expert opinions or advice where needed, asking for more information (if needed) to facilitate the accommodation process, taking an active role in arranging the accommodation, keeping your information confidential, and paying the cost of medical documentation (such as doctor’s notes) setting out accommodation needs, etc.

Ability to perform essential duties and requirements

Essential duties and requirements are those that are needed to use a service, have access to housing or to do a job. The requirement must be reasonable and genuine. For example, if a person applies for a job as a lawyer, it may not be essential that he or she can operate a photocopier. However, if that person is applying for a job in a copy shop, the ability to use a photocopier is likely essential.

If you cannot perform the essential duties or requirements of a job, you should identify any needs that may allow you to do these essential duties or requirements. Your employer then must try to meet your needs, to the point of undue hardship, which considers costs, any outside sources of funding, and any health or safety concerns. If needs simply cannot be met or you cannot do the job even after your needs are met, your employer’s duty to accommodate ends and there is no violation of the Code.

If your disability prevents access to housing or use of a service, you should identify any needs that may allow such access or use. A landlord or service provider must then try to meet these needs to the point of undue hardship, which considers cost, any outside sources of funding and any health or safety concerns. If your needs simply cannot be met or you still cannot access housing or use the service even after your needs have been met, the landlord’s or the service provider’s duty to accommodate ends, and there is no violation of the Code.

[32] For more detailed information on the duty to accommodate persons with disabilities, see the OHRC’s Policy and guidelines on disability and the duty to accommodate (2001).

Code Grounds: 
Organizational responsibility: 

Special interest organizations

There is an exception to the rule that services must be offered without discrimination. It only applies to organizations such as charities, schools, social clubs or fraternities that want to limit their right of membership and involvement. They are allowed to do this on the condition that they serve only or mostly a particular group of people identified by a Code ground. For example, a cultural club serving only persons with physical disabilities may limit membership to those persons, and a shelter for battered women is allowed to serve only people who identify as women.

Because this is an exception to the Code, it must be read narrowly. Only organizations that clearly qualify as religious, charitable, etc. can use this section.

Solemnization of marriage by religious officials

There is an exception to the rule that services and facilities must be offered without discrimination. It allows a religious official to refuse to perform a marriage ceremony, to refuse to make available a sacred place for performing a marriage ceremony or for an event related to a marriage ceremony, or to assist in the marriage ceremony where the ceremony would be against the person’s religious beliefs or the principles of their religion.

This section would apply to allow religious officials to refuse to perform same-sex marriages without violating the Code. Requiring a religious official to perform a marriage ceremony that goes against his or her religious beliefs about marriage may violate that person’s right to freedom of religion as protected by the Charter of Rights and Freedoms.

However, nothing in this section permits public officials who are licensed to perform marriage ceremonies to refuse to perform this service for same-sex couples. The section only applies to religious officials.[33]

[33] For more information on the right to be free from discrimination because of sexual orientation, see the OHRC’s Policy on discrimination and harassment because of sexual orientation (2006).

Code Grounds: 

Separate school rights preserved

Separate schools in Ontario have special rights guaranteed by the Constitution and by the Education Act. Section 19 means that the Code cannot affect those rights, which are mainly related to the existence and funding of Roman Catholic schools.

Otherwise, the right to be free from discrimination under the Code applies to Catholic schools. All schools have a legal duty to provide students with an education environment free from harassment and other forms of discrimination because of Code grounds.

This section does not deal with the rights or privileges of any religion-based schools other than Roman Catholic schools.

Code Grounds: 

Restrictions of facilities by sex

This section allows separate washrooms, examination areas, change rooms and other services that are men-only or women-only. Trans people should be provided access to facilities that are consistent with their lived gender identity.[34]

[34] For more information, see the OHRC’s Policy on discrimination and harassment because of gender identity (2000).

Code Grounds: 

Recreational clubs

Recreational clubs such as sports clubs may give different services or charge different fees to persons based on sex, marital status or family status. For example, special family rates in a community centre or women-only sections of a gym are permitted under the Code.

Code Grounds: 

Restrictions for insurance contracts

There is an exception to the rule that services and contracts must be offered without discrimination. This section allows insurance providers to make distinctions based on age, sex, marital and family status or disability when they offer individual accident, sickness or disability insurance or group insurance (not part of an employment situation). However, these distinctions must be made on reasonable and genuine grounds.

Social Areas: 

Employment [35]

Job advertisements

Advertisements for jobs should not refer, directly or indirectly, to prohibited grounds of discrimination. For example, an ad that says “We prefer hiring younger people” is not allowed.[36]

Application forms

Application forms should not contain questions that ask, directly or indirectly, about race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, record of offences, age, marital status, family status or disability. Employment-related medical questions that are part of the applicant screening process are also not allowed under the Code.[37]


An employer is looking for certified welders with “Canadian experience.” This ad may be discrimination because it could exclude welders who have qualified experience outside of Canada. To learn more about how the requirement for “Canadian experience” can be discrimination, see the OHRC’s Policy on removing the “Canadian experience” barrier.

Employment and driver’s licences

Employers should not request driver’s licences on job application forms because, first, it may screen out applicants with disabilities without first determining if someone can be accommodated, and second, it may allow the use of the licence to tell the person’s age.[38]

If operating a vehicle is an essential job duty (such as for a truck, bus or taxi driver or chauffeur), and if individual accommodation is not possible, the requirement for a valid driver’s licence may be stated in a job ad and discussed at an interview. A request for a driver’s licence number or a copy of the licence can be made following a conditional offer of employment.

Employment interviews

In job interviews , employers should only ask you questions needed to determine your qualifications or ability to do the job. For example, an employer can ask you about your physical abilities if the job is for a furniture mover. However, if you are being interviewed for a computer systems analyst position, it is not relevant for a potential employer to ask about your physical abilities.

If your disability becomes an issue at the interview (for example, if you choose to talk about your disability), an employer may ask about your ability to do the essential duties of the job and about how your needs can be met. Questions should not be out of curiosity, such as “How did you end up in a wheelchair?” or “Have you been blind all your life?”[39]

Employment agencies

An employer cannot use an employment agency to hire people based on preferences related to race, sex, disability or the other Code grounds. For example, a company cannot ask an agency to send only “persons of European background” to fill a receptionist position. However, an employer can express preference based on genuine job requirements, such as the requirement to speak French for a bilingual position.

Employment agencies cannot screen applicants based on discriminatory grounds and are not allowed to keep records of client “preferences” of this kind.

If a temporary employee is referred by an agency and then requires assistance to meet his or her disability-related needs, it would be the joint responsibility of the agency and the client to arrange accommodation.

[35] For more information, see the OHRC’s publication, Human Rights at Work (2008).

[36] For more information on age discrimination, see the OHRC’s Policy on discrimination against older persons because of age (2007).

[37] For more information, see the OHRC’s publication, Human Rights at Work (2008).

[38] For more information, see the OHRC’s Policy on requiring a driver’s licence as a condition of employment (1996), and the Policy and guidelines on disability and the duty to accommodate (2001).

[39] For more information, see the OHRC’s Policy and guidelines on disability and the duty to accommodate (2001).


Social Areas: 
Organizational responsibility: 

Special employment

Organizations are generally not allowed to hire in a discriminatory way. However, there are some exceptions. The most common ones are:

  1. A religious, philanthropic, educational, fraternal or social institution or organization may be allowed to give preference in hiring employees based on Code-protected grounds if the organization is focused on serving the interests of that group of people. For example, an organization that specializes in providing services to people with disabilities may give preference in hiring people with disabilities. This exception is only permitted if membership in a particular group is reasonable, genuine and linked to the duties of the job they are being hired for.
  1. It is legal to make a hiring decision based on age, sex, record of offences or marital status only if an employer can show that the requirement is reasonable, genuine and based on the nature of the job.
  1. The Code allows you to hire or not hire any medical or personal attendant for yourself or an ill member of your family. This section does not, however, allow agencies or health care services to send nurses or personal attendants to clients based on discriminatory preferences. You must be the “employer” to hire who you want to care for you or an ill family member.


Social Areas: 

Employee benefit and pension plans

Employment may not be denied or made conditional upon enrolment in a benefit or similar plan, which makes a distinction based on a Code ground. The general rule of non-discrimination in employment applies to pension plans, benefit plans and terms of group insurance except where reasonable and genuine distinctions or exclusions are based on age, marital status, family status or sex.

An employee with a disability can be treated differently in a life insurance or benefit plan where a pre-existing disability increases the risk to a high level. An employer must compensate an employee with a disability if the employee is excluded from an employee benefit, pension or superannuation plan or fund, or a contract of group insurance between an insurer and the employer. The payment should be the same as the amount contributed to the insurer for an employee without a disability.

As a rule, the right to receive benefits under disability plans ends when you are on pregnancy or parental leave. But if your employer offers disability benefits to employees who are off on other kinds of leaves, such as education leaves or sabbaticals, they are required by law to pay the benefits to people on pregnancy leave and parental leave. Check with your employer for more information.

Social Areas: 

Discrimination in employment under government contracts

The right to freedom from discrimination in employment applies to government contracts or subcontracts. This right applies to government agency contracts also.

The right to be free from discrimination in employment applies to carrying out government grants, contributions, loans or guarantees. This right also applies to government agencies.

If a Tribunal finds that discrimination in employment did take place in the performance of a government contract, grant, contribution, loan or guarantee, the government contract, grant, contribution, loan or guarantee will be cancelled. No further contract with or grant, contribution, loan or guarantee will be made to the same person.

Social Areas: