6. Ontario’s Human Rights Code

6.1 Protections

Under the Ontario’s Human Rights Code, trans people and other gender non-conforming individuals are protected from discrimination and harassment because of gender identity and gender expression in five social areas:[23]

  • When receiving goods, services and using facilities (section 1). “Services” is a broad category and can include privately or publicly owned or operated services including insurance, schools, restaurants, policing, health care, shopping malls, etc.
  • When occupying housing accommodation (section 2). This includes private rental housing, co-operative housing, social housing and supportive or assisted housing
  • When entering into a contract with others (section 3). This includes the offer, acceptance, price or even rejecting a contract
  • In employment (section 5). This includes full time work, part-time work, volunteer work, student internships, special employment programs, probationary employment,[24] and temporary or contract work
  • When joining or belonging to a union, professional association or other vocational association (section 6). This applies to membership in trade unions and self-governing professions, including the terms and conditions of membership, etc.

A fundamental aspect of the Code is that it has primacy over all other provincial laws in Ontario, unless the law specifically says that it operates notwithstanding the Code. This means where a law conflicts with the Code, the Code will prevail, unless the other law says otherwise.[25]

6.2 Establishing discrimination

The Code does not define discrimination. Instead, the understanding of discrimination has evolved from tribunal and court decisions. To establish prima facie (on its face) discrimination the person making a claim must show:

  1. They have a characteristic protected by one or more of the Code grounds (e.g. gender identity or gender expression)[26]
  2. They experienced adverse or negative treatment or impact in one of the social areas under the Code (e.g. in accessing a service, housing or employment)
  3. The protected characteristic was a factor in the adverse treatment or impact.[27]

Discrimination is not always direct and is often hard to detect. The claimant must show on a “balance of probabilities” (more likely than not) that adverse or negative treatment happened. The analysis should be flexible and look at all relevant factors in the situation including circumstantial evidence as well as the full impact on the affected person or group. While there may be evidence of “intent,” this is not needed to prove discrimination. Gender identity, gender expression or other protected characteristics need only be one of the factors in the negative treatment for discrimination to exist.[28]

Once prima facie discrimination is established, the burden then shifts to the organization or person responsible to either provide a credible non-discriminatory explanation, or justify the conduct or practice using one of the defences available under the Code (also see sections 9 and 10 of this policy).

6.3 Right to self-identify gender

International human rights principles are clear that every person has the right to define their own gender identity. A person’s self-defined gender identity is one of the most basic aspects of self-determination, dignity and freedom.[29]

For legal and social purposes, a person whose gender identity is different from their birth-assigned sex should be treated according to their lived gender identity.[30]

The Human Rights Tribunal of Ontario (HRTO) has said that, “for transgendered people, insisting on their treatment in accordance with their birth gender for all purposes is discriminatory because it fails to take into account their lived gender identity.”[31]

[23] The grounds ”gender identity” and “gender expression” address many types of human rights violations that were previously addressed under the grounds of “sex” and “disability.” For example, see Forrester v. Peel (Regional Municipality) Police Services Board et al, 2006 HRTO 13 (CanLII) and Hogan v. Ontario (Health and Long-Term Care), 2006 HRTO 32 (CanLII). In other jurisdictions, this type of discrimination is covered under the ground of “sex” or in some cases “disability.”

[24] See Adga Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON SCDC).

[25] Section 47 of the Code reads: (1) This Act binds the Crown and every agency of the Crown. (2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act. R.S.O. 1990, c. H.19, s. 47 (2).

[26] The Code would also protect people who experience discrimination because of a relationship, association or dealings with a person because of that person’s gender identity or expression or other protected characteristic (See section XX on Forms of Discrimination below).

[27] R.B. v. Keewatin-Patricia District School Board, 2013 HRTO 1436 at para. 204. These requirements for establishing discrimination were drawn from Moore v. British Columbia (Education), 2012 SCC 61.

Note that in a few cases, most of which have challenged government services or have raised concerns that different treatment may not amount to discrimination in a substantive sense, disadvantage is not inferred or assumed from the circumstances but may need to be shown by the claimant to establish adverse treatment or impact: see, for example, Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII), Ivancicevic v. Ontario (Consumer Services), 2011 HRTO 1714 (CanLII), Klonowski v. Ontario (Community Safety and Correctional Services), 2012 HRTO 1568 (CanLII). However, the Court of Appeal for Ontario and HRTO have noted that in most cases under the Code, disadvantage can be assumed where there is adverse treatment based on a prohibited ground and that in most human rights cases it will not be necessary to go through a process of specifically proving what the disadvantage is; see Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 45 (CanLII).  

[28] Gray v. A&W Food Service of Canada Ltd. (1994), CHRR Doc 94-146 (Ont. Bd. Inq.); Dominion Management v. Velenosi, [1977] O.J. No. 1277 at para. 1 (Ont. C.A.); Smith v. Mardana Ltd. (No. 1) (2005), 52 C.H.R.R. D/89 at para. 22 (Ont. Div. Ct.); King v. CDI Career Development Institutes Ltd. (2001), 39 C.H.R.R. D/322 (Sask. Bd.Inq.).

[29] Yogyakarta Principlessupra note 20, Principle 3: The right to recognition before the law.

[30] See Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977 at paras. 66-67 (CanLII) (also citing XY v. Ontario (Government and Consumer Services), supra, note 2) and Sheridan v. Sanctuary Investments Ltd. (c.o.b. B.J.'s Lounge), [1999] B.C.H.R.T.D. No. 43, 3 C.H.R.R. D/467 at para 107: “transsexuals who are living as members of the desired sex should be considered to be members of that sex for the purposes of human rights legislation.”

[31] Vanderputten ibid. at para. 66 (CanLII).