Endnotes
[1] The Ontario Human Rights Commission (OHRC) was established as an arm’s length agency of government in 1961 to prevent discrimination and to promote and advance human rights in Ontario. The OHRC is one pillar of Ontario’s human rights system, alongside the Human Rights Tribunal of Ontario (HRTO) and the Human Rights Legal Support Centre (HRLSC). Learn more on the OHRC’s website: https://www.ohrc.on.ca/en/about-us/who-we-are
[2] Pro Bono Students Canada (PBSC) is a national law student program whose mission is to provide free legal support to people and communities facing barriers to justice. Learn more on PBSC’s website: https://www.probonostudents.ca/who-we-are
[3] The Ontario Federation of Indigenous Friendship Centres (OFIFC) represents the collective interests of 31 Friendship Centres in cities and towns across Ontario. Friendship Centres are places for community members and Indigenous people living in urban spaces to gather, connect with one another and receive culturally based services. Learn more on the OFIFC’s website: https://ofifc.org/about/
[4] Ontario Human Rights Code, R.S.O.1990, c. H.19 [Code]; available online: https://www.ontario.ca/laws/statute/90h19#BK33.
[5] Statistics Canada, “Indigenous population continues to grow and is much younger than the non-Indigenous population, although the pace of growth has slowed,” (2022), The Daily; available online: https://www150.statcan.gc.ca/n1/daily-quotidien/220921/dq220921a-eng.htm
[6] Statistics Canada, “Ontario [Province] (table). Indigenous Population Profile,” 2021 Census of Population, Statistics Canada Catalogue no. 98-510-X2021001, released June 21, 2023; available online: https://www12.statcan.gc.ca/census-recensement/2021/dp-pd/ipp-ppa/details/page.cfm?Lang=E&DGUID=2021A000235&SearchText=Ontario&HP=0&HH=0&GENDER=1&AGE=1&RESIDENCE=3
[7] Truth and Reconciliation Commission [TRC], Honouring the Truth, Reconciling for the Future Summary of the Final Report of the Truth and Reconciliation Commission of Canada, (2015) at 336; available online: https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf.
[8] Ontario Human Rights Commission [OHRC], Teaching human rights in Ontario - A guide for Ontario schools, (2013) at Appendix 1; available online:https://www.ohrc.on.ca/en/teaching-human-rights-ontario-guide-ontario-schools/appendix-1-glossary-human-rights-terms https://www.ohrc.on.ca/en/teaching-human-rights-ontario-guide-ontario-schools/appendix-1-glossary-human-rights-terms
[9] OHRC, Human Rights at Work – Third Edition, (2008) at section III.2; available online: https://www.ohrc.on.ca/en/iii-principles-and-concepts/2-what-discrimination
[10] Nova Scotia Human Rights Commission [NSHRC], Working Better to Serve All Nova Scotians, (2013) at 10; available online: https://humanrights.novascotia.ca/sites/default/files/crp-report.pdf
[11] OHRC, An Intersectional Approach to Discrimination: Addressing Multiple Grounds in Human Rights Claims, (2001) at 3, which quotes: M. Eaton, “Patently Confused, Complex Inequality and Canada v. Mossop” (1994) 1 Rev. Cons. Stud. 203 at 229; available online: https://www.ohrc.on.ca/sites/default/files/attachments/An_intersectional_approach_to_disc rimination%3A_Addressing_multiple_grounds_in_human_rights_claims.pdf
[12] Madam Justice L’Heureux-Dubé writing for the minority in Canada (A.G.) v Mossop [1993] 1 SCR at 645.
[13] Code, supra note 4, section 10 (1).
[14] OHRC, Guide to your rights and responsibilities under the Human Rights Code, (2013), at 10; available online: https://www.ohrc.on.ca/en/guide-your-rights-and-responsibilities-under-human-rights-code-0
[15] OHRC, supra note 8, “Harassment”
[16] Ibid., at Students’ Handouts – Fact Sheet #4
[17] Indigenous people are also protected from discrimination in areas of federal jurisdiction through the Canadian Human Rights Act (R.S.C., 1985, c. H-6; available online: https://laws-lois.justice.gc.ca/eng/acts/h-6/). Examples of organizations covered by the federal law are chartered banks, airlines, federal government departments and agencies as well as First Nations governments and band councils. Determining what issues may be dealt with at the Human Rights Tribunal Ontario or the Canadian Human Rights Tribunal can be complex, particularly regarding potential discrimination that occurs on-reserve.
[18] For more information see: OHRC, Guide to your rights and responsibilities under the Human Rights Code, (2013); available online: https://www.ohrc.on.ca/en/guide-your-rights-and-responsibilities-under-human-rights-code-0
[19] OHRC, Under Suspicion: Issues raised by Indigenous peoples, webpage. Retrieved on November 21, 2024 from: https://www.ohrc.on.ca/en/under-suspicion-issues-raised-indigenous-peoples
[20] OHRC, “OHRC statement on allegations of refusal of service to Indigenous people in Kenora,” Chief Commissioner statement, February 24, 2014; available online: https://www.ohrc.on.ca/en/news_centre/ohrc-statement-allegations-refusal-service-indigenous-people-kenora
[21] Logan Turner, “Baseless Facebook posts about Wabaseemoong COVID-19 outbreak a symptom of wider racism, say community members,” CBC News, February 24, 2021: https://www.cbc.ca/news/canada/thunder-bay/kenora-racist-social-media-posts-1.5925748
[23] Ibid.
[24] Ibid. at 6
[25] Johnson v. Halifax Regional Police Service, 2003 CanLII 89397 (NS HRC) at para 57, cited in Pieters v. Toronto Police Services Board, 2014 HRTO 1729 (CanLII) at para 93; available online: https://www.canlii.org/en/on/onhrt/doc/2014/2014hrto1729/2014hrto1729.html.
[26] Jon Thompson, “Ojibway man takes to Tiktok over treatment at Urban Planet in Thunder Bay,” APTN News, July 14, 2022; available online: https://www.aptnnews.ca/national-news/ojibway-man-takes-to-tiktok-over-treatment-at-urban-planet-in-thunder-bay/
[27] Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) [Radek], 2005 BCHRT 302; available online: https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt302/2005bchrt302.html?autocompleteStr=2005%20bchrt%20302&autocompletePos=1
[28] Security guards are not law enforcement, they are private individuals who may only arrest individuals under citizen’s arrest powers. Their powers originate from s.494 of the Criminal Code (Criminal Code, R.S.C., 1985, c. C-46; available online: https://laws-lois.justice.gc.ca/eng/acts/c-46/) and legislation like the Trespass to Property Act (Trespass to Property Act, R.S.O. 1990, c. T.21; available online: https://www.ontario.ca/laws/statute/90t21). For more information, see: Government of Canada, Department of Justice, What You Need to Know About Making a Citizen's Arrest, webpage, retrieved on December 17, 2024 from: https://www.justice.gc.ca/eng/rp-pr/other-autre/wyntk.html; and Justice for Children and Youth, Hot Topics – Security Guards, webpage, retrieved on December 17, 2024 from: https://jfcy.org/en/rights/hot-topic-security-guards/.
[29] Radek, supra note 27
[30] OHRC, supra note 19
[31] Samantha Beattie, “Indigenous man a longtime Giant Tiger customer – until he says he was falsely accused of stealing,” CBC News, February 21, 2022; available online: https://www.cbc.ca/news/canada/toronto/indigenous-customer-giant-tiger-falsely-accused-1.6356810
[32] Smallboy v. Grafton Apparel, 2021 BCHRT 15; available online: https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt15/2021bchrt15.html
[33] OHRC, supra note 19
[34] Radek, supra note 27, at paras 262 and 485-487: The Applicant was an Indigenous woman who had a disability and the Tribunal noted that “her disability may have appeared to the [security] guard to be signs of intoxication” and held that it was a factor in the discrimination Ms. Radek experienced.
[35] Pamela Cowan, “Man claims he was accused of stealing because he is Indigenous; police investigating altercation at Canadian Tire,” Regina Leader-Post, July 27, 2017; available online: https://leaderpost.com/news/local-news/man-claims-he-was-accused-of-stealing-because-he-is-indigenous-police-investigating-altercation-at-canadian-tire
[36] Code, supra note 4, at Preamble
[37] “This is our N-word’: Indigenous teacher asks Urban Planet to drop racial slur,” CBC News, October 7, 2019; available online: https://www.cbc.ca/news/canada/new-brunswick/offensive-term-remove-urban-planet-1.5305540
[38] OHRC, “OHRC settlement addresses harmful impact of stereotypes on Indigenous youth,” News release, December 13, 2018; available online: https://www.ohrc.on.ca/en/news_centre/ohrc-settlement-addresses-harmful-impact-stereotypes-indigenous-youth; and OHRC, “Letter to municipalities on the harmful impact of Indigenous-themed sports logos,” Chief Commissioner letter, May 13, 2019; available online: https://www.ohrc.on.ca/en/news-center/letter-municipalities-harmful-impact-indigenous-themed-sports-logos-0; and OHRC, “Second letter to municipalities on the harmful impact of Indigenous-themed sports logos,” Chief Commissioner letter, July 13, 2021; available online: https://www.ohrc.on.ca/en/news-center/second-letter-municipalities-harmful-impact-indigenous-themed-sports-logos.
[39] Code, supra note 4, at section 13 (1)
[40] Government of Canada, Indigenous Services Canada, About Indian status, webpage. Retrieved on November 21, 2024, from: https://www.sac-isc.gc.ca/eng/1100100032463/1572459644986
[41] Ibid.
[42] Government of Ontario, Ministry of Finance, HST: Ontario First Nations rebate, webpage. Retrieved on November 11, 2024, from: https://www.ontario.ca/document/harmonized-sales-tax-hst/ontario-first-nations-harmonized-sales-tax-hst-rebate-0#section-5
[43] Retail Sales Tax Act R.S.O. 1990, c. R. 31, O. Reg. 317/10; available online: https://www.ontario.ca/laws/regulation/100317
[44] Ibid. at section 9
[45] Ibid. at section 8
[46] Union of BC Indian Chiefs, They Sigh or Give You the Look: Discrimination and Status Card Usage, (2022) at 21 and 73-75; available online https://drive.google.com/file/d/1jPTLpjcFLj-ld6gFW-HiYmWmyVXZRYXq/view
[47] Ibid. at 75
[48] Ibid. at 50
[49] Naomi Sayers, “Tax Exemption,” Kwetoday, January 9, 2011; available online: https://kwetoday.com/2011/01/09/tax-exemption/
[50] Christopher Curtis, “Mohawks are getting tired of explaining to cashiers why they don't have to pay QST,” Montreal Gazette, September 9, 2015; available online: https://montrealgazette.com/news/mohawks-are-getting-tired-of-explaining-to-cashiers-why-they-dont-have-to-pay-qst.
[51] Kate Rutherford, “ Whitefish River First Nation family wants apology after security called to remove them from Sudbury store,” CBC News, January 5, 2024; available online: https://www.cbc.ca/news/canada/sudbury/whitefish-river-first-nation-family-wants-apology-after-security-called-to-remove-them-from-sudbury-store-1.7074843
[52] “Morris Home Hardware facing human rights complaint,” CBC News, September 12, 2014; available online: https://www.cbc.ca/news/canada/ottawa/morris-home-hardware-facing-human-rights-complaint-1.2765005
[53] “Morris Home Hardware owner sorry for not honouring tax exemption,” CBC News, September 29, 2014; available online: https://www.cbc.ca/news/canada/ottawa/morris-home-hardware-owner-sorry-for-not-honouring-tax-exemption-1.2781745
[54] Josephs v. Toronto (City), 2016 HRTO 885; available online: https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto885/2016hrto885.html
[55] When a Status card is lost, stolen, or destroyed, Indigenous Services Canada may issue a Temporary Confirmation of Registration Document (TCRD), which is valid for 1 year. The TCRD also confirms registration under the Indian Act and eligibility for certain rights, benefits, and services but individuals seeking to use the TCRD may be required to present one additional piece of valid acceptable identification with the individual's picture to make sure the name matches on the temporary document. For more information, see Government of Ontario, supra note 42.
[56] Government of Canada, Indigenous Services Canada, Is your status card valid?, webpage. Retrieved on November 21, 2024, from: https://www.sac-isc.gc.ca/eng/1100100032424/1572461852643
[57] Government of Ontario, ServiceOntario, Acceptable identity document, webpage. Retrieved on November 21, 2024, from: https://www.ontario.ca/page/acceptable-identity-documents
[58] Harry v. Trail Apothecary Ltd., 2004 BCHRT 238; available online: https://canlii.ca/t/h09pt. The BC Human Rights Tribunal found that discrimination occurred when a pharmacist refused to directly bill NIHB for wrist braces because the pharmacy had a policy of not billing for medical equipment for less than $300. The pharmacy could not show that accommodating the applicant would result in undue hardship, partially because they already had a practice of billing NIHB directly for medication.
[59] While the Code protects people from discrimination, it does not require the creation of “safe spaces” more broadly. Nevertheless, the wise practices listed in this section can both create an inclusive, safe space for Indigenous people that is better in tune with principles of reconciliation and, in some instances, prevent discrimination under the Code.
[60] OHRC, supra note 8, at Students’ Handouts – Fact Sheet #5
[61] OHRC e-Learning modules, such as “Call it out: racism, racial discrimination and human rights” and “Human Rights 101 – Third Edition”, are available here: https://www.ohrc.on.ca/en/our-work/online-learning. Additionally, OHRC publications on the subject of race and related grounds are available here: https://www.ohrc.on.ca/en/your-rights/code-grounds/race-and-related-grounds, while publications related to Indigenous Reconciliation are available here: https://www.ohrc.on.ca/en/key-priorities/indigenous-reconciliation.
[62] Radek, supra note 27
[63] Government of Ontario, supra note 42
[64] Ibid.
[65] OHRC, Human Rights-Based Approach to Policy and Program Development, (2024) at Appendix; available online: https://www.ohrc.on.ca/en/human-rights-based-approach-policy-and-program-development-0
[66] “Cultural Appropriation of Indigenous Peoples in Canada,” The Canadian Encyclopedia, April 18, 2018 (Last edited on July 20, 2020); available online: https://www.thecanadianencyclopedia.ca/en/article/cultural-appropriation-of-indigenous-peoples-in-canada
[67] Lindsay v. Toronto District School Board, 2020 HRTO 496, at para 23; available online: https://www.canlii.org/en/on/onhrt/doc/2020/2020hrto496/2020hrto496.html. In this recent case about cultural appropriation, the HRTO recognized the ways in which a tribunal may take judicial notice of the ways in which Indigenous people have been marginalized and disadvantaged in Canadian society. This is necessary to show that the use of Indigenous symbols and images constitutes substantive discrimination.
[68] “Why Cultural Appropriation is Disrespectful,” Indigenous Corporate Training Inc., October 4, 2020; available online: https://www.ictinc.ca/blog/why-cultural-appropriation-is-disrespectful
[69] OHRC, supra note 61