II. Introducing the Ontario Human Rights Code

1. The context for interpreting the Code

a) Background and history

In 1962, many laws dealing with discrimination were brought together, along with additional protections, to create the Code. The Code has been amended at various times since then. The most recent amendments were passed in December 2006. The Ontario Code only provides protection against discrimination in Ontario. There are other pieces of human rights legislation in each of the other provinces and territories and federally.

b) Fundamental principles

When interpreting the Code or deciding what action to take in a specific circumstance, employers should always be guided by the fundamental principles of the Code:

  • dignity and worth of every person
  • understanding and mutual respect
  • equal opportunity to participate in and contribute fully to the community.

c) The Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms (the Charter)[2] is a constitutional document. It is described as the “supreme law” in Canada because it can be used in the courts to challenge or strike down unconstitutional laws or government practices. The Charter guarantees equal rights and treatment based on a number of grounds, including race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

The Charter only applies to the acts and conduct of government, and does not apply to the acts of, and conduct between, individuals. In comparison, the Ontario Human Rights Code applies to both private and public sectors, as well as to conduct between individuals within the listed social areas. Despite these differences, some of the general principles used to interpret the Charter can also be used in interpreting the Code, although it is not clear that the same legal tests used for the Charter should apply to the Code.[3]

d) International human rights documents

Canada has signed on to many international human rights Conventions, documents and treaties.
Examples include:

  • Universal Declaration of Human Rights
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic, Social and Cultural Rights
  • International Convention on the Elimination of All Forms of Racial Discrimination
  • International Convention on the Elimination of All Forms of Discrimination against Women.

In Canada, international documents are not part of domestic law unless the government passes a statute to put them into action. However, the values reflected in international human rights law may help us interpret human rights laws. This means that international documents may play an important role in interpreting the Code.

[2] Constitution Act, 1982, Part I.
[3] See Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 and Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817; but see Vancouver Rape Relief Society v. Nixon, 2005 BCCA 601, leave to appeal refused [2006] S.C.C.A. No. 365.

2. The Code prevails over other laws

a) Other laws may apply along with the Code

In employment, several laws may apply at the same time as the Code, with overlapping or parallel responsibilities. Knowing which laws apply and why they apply will help you know how best to handle situations that may arise in your workplace. Appendix B summarizes the most common areas of overlap between human rights legislation and other laws.

b) Supremacy of the Code

The Supreme Court of Canada has said that human rights legislation such as the Code is not like other laws.[4] It should not be treated the same as other pieces of provincial legislation because it is almost as important as the constitution, or “quasi-constitutional.” This means that you must comply with the Code before other laws, unless there is a specific exception. The requirements in other legislation may be considered to be minimum standards that can be exceeded to comply
with the Code.

Example: The Employment Standards Act allows employees to take eight weeks of “family medical leave” to provide care to a dependent who is near death. A couple who work for the same employer request this time off to care for their child who is gravely ill. This request is granted based on medical documentation. They are both allowed to be off work for four weeks.

At the end of the four weeks, one spouse returns to the job and the other requests more time off to continue to care for the child who has recovered somewhat but is still very ill. The employer takes the position that it has met its obligations under the Employment Standards Act and therefore this request for additional time is denied. The employer may be vulnerable to a human rights claim, based on family status and marital status.

When there is a conflict between the Code and another Ontario law, the Code prevails unless that law specifically states it applies despite the Code. This is set out very clearly in subsection 47(2) of the Code.

Example: The Workplace Safety Insurance Act (WSIA) imposes a duty on employers with more than 20 employees to re-employ a worker, if he or she had worked for the employer for a year before their injury. Under the Code, all employers have a duty to accommodate to the point of undue hardship, no matter how many employees they have or how long the employees have worked there. To comply with the Code, an employer might have to return an employee to his or her pre-injury job with accommodation, even if the employer has fewer than 20 employees and the person is a new employee. An employer who complies only with the lesser requirements of the WSIA would be vulnerable to human rights complaints.

The Supreme Court of Canada recently said that the Code applies when administrative bodies interpret legislation and make decisions.[5] Where there is an inconsistency between the Code and that administrative body’s own statute, the Code has primacy and will prevail.

Example: A man applies for social assistance benefits, but a tribunal decides that he is not eligible. The reason the tribunal gives is that alcoholism is specifically excluded from the list of disabilities under the applicable Act. But this interpretation does not comply with the Code. All the rights and obligations under the Code apply to persons with disabilities, including alcoholism. The Supreme Court tells the tribunal that if the language in its own Act is inconsistent with the Code, then its own Act should be ignored.

Because of the special nature of the Code, the protections it provides will need to be broadly interpreted. The aim is to give effect to the key principles of dignity, mutual respect and equal opportunity to contribute.

Example: An employer argues that the protections in the Code do not apply because an employee is really an independent contractor. Technically, this person may not be considered to be an “employee” under tax or employment standards laws. But, the person would be an employee under the Code – the definition of “employee” would expand to include him or her.

On the other hand, any exceptions or defences in the Code are interpreted narrowly.

Example: An employer argues that it is a religious organization and that it can discriminate based on religion when hiring staff. It seeks an exemption in the Code. The employer will be expected to have strong evidence to prove that they meet all the criteria in the Code for this defence to apply.

[4] Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. (Heerspink)
[5] Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513 (Tranchemontagne).

3. How the Code is set up

The Code is divided into an introductory section followed by five parts. Part I sets out basic rights. Part II explains how to interpret and apply the Code. Part III explains the role and structure of the Commission, and Part IV explains how the Code is enforced, including remedies. Finally, Part V deals with general matters including the supremacy of the Code.

a) Social areas

Human Rights at Work focuses on employment, which is one of five social areas listed in the Code. The other social areas are:

  • services, goods and facilities
  • accommodation (housing)
  • contracts
  • membership in vocational associations (including trade unions).

The Code applies to all employees, in the broadest sense of the word, and all workplaces including those governed by a collective agreement. In many cases, there may be overlaps between employment and other social areas.

Example: A non-profit group runs a drop-in centre for young people at risk of being homeless. Many of the young people are racialized. Some people visiting the centre use bad language that demeans both staff and other users of the drop-in centre based on race, gender and sexual orientation. The group would need to know the rights and responsibilities in the Code under the social area “services, goods and facilities” with regard to the young people using the drop-in centre, and the social area “employment” with regard to its staff.

b) Prohibited discrimination grounds

In the area of employment, the following grounds may apply:

  • race
  • ancestry
  • place of origin
  • colour
  • ethnic origin
  • citizenship
  • creed (religion)
  • sex (includes gender identity and pregnancy)
  • sexual orientation
  • age (18 years or more)
  • record of offences
  • marital status
  • family status
  • disability (includes perceived disability)

People are also protected from discrimination based on intersecting grounds; when they are associated with someone protected by one of the listed grounds; or when they are perceived to be a member of a group identified by the grounds listed above. See Section III-3 for more information on grounds.