Policy on competing human rights

Summary

As people better understand their rights and wish to exercise them, some of those rights may come into conflict with the rights of others. This is especially true in Ontario’s increasingly diverse and complex society. Conflicts can begin when an individual or group tries to enjoy or exercise a right, interest or value in an organizational context (e.g. in schools, employment, housing, etc.). At times, these claims may be in conflict, or may appear to be in conflict with other claims. Depending on the circumstances, for example, the right to be free from discrimination based on creed or sexual orientation  or gender may be at odds with each other or with other rights, laws and practices. Can a religious employer require an employee to sign a “morality pledge” not to engage in certain sexual activity? Can an accuser testify wearing a niqab (a face veil worn by some for religious reasons) at the criminal trial of her accused? How do you resolve a situation where a professor’s guide dog causes a severe allergic reaction in a student?

The Canadian Charter of Rights and Freedoms, provincial human rights legislation (including the Ontario Human Rights Code) and the courts recognize that no rights are absolute and no one right is more important than another right. Our laws guarantee rights such as freedom of expression as well as protection against discrimination and harassment based on gender, creed, sexual orientation and disability, among other grounds. They require we give all rights equal consideration. The law also recognizes that rights have limits in some situations where they substantially interfere with the rights of others.

The courts have said we must go through a process on a case-by-case basis to search for solutions to reconcile competing rights and accommodate individuals and groups, if possible. This search can be challenging, controversial, and sometimes dissatisfying to one side or the other. But it is a shared responsibility and made easier when we better understand the nature of one another’s rights and obligations and demonstrate mutual respect for the dignity and worth of all involved. Finding the best solution for maximizing enjoyment of rights takes dialogue and even debate.

Ontario’s Human Rights Code says the Ontario Human Rights Commission’s mandate includes reducing tension and conflict in Ontario’s communities and encouraging and co-ordinating plans, programs and activities to do this. The OHRC has developed this Policy on Competing Human Rights to help organizations and individuals address difficult situations involving competing rights.

Goals of policy

The Policy on Competing Human Rights is intended to be a useful tool for individuals and organizations as they deal with different types of conflict. It sets out a process to analyze and reconcile competing rights that emphasizes specific objectives and considerations.

For example, everyone involved should:

• show dignity and respect for one another
• encourage mutual recognition of interests, rights and obligations
• facilitate maximum recognition of rights, wherever possible
• help parties to understand the scope of their rights and obligations
• address stigma and power imbalances and help to give marginalized individuals
• and groups a voice
• encourage cooperation and shared responsibility for finding agreeable solutions
• that maximize enjoyment of rights.

The approach in the policy can help organizations and decision-makers resolve and even avoid rights conflicts altogether. Where litigation cannot be avoided, the policy provides a framework that can be used by courts and tribunals as they deal with these types of conflicts.

Practical steps to reduce potential for conflict

Employers, housing providers, educators and other responsible parties covered by the Ontario Human Rights Code have the ultimate responsibility for maintaining an inclusive environment that is free from discrimination and harassment, and where everyone’s human rights are respected. As part of this, organizations and institutions operating in Ontario have a legal duty to take steps to prevent and respond to situations involving competing rights.

Organizations can reduce the potential for human rights conflict and competing rights situations by:

• being very familiar with the Ontario Human Rights Code and with their obligations under it
• taking steps to educate and train responsible individuals on competing rights situations and the OHRC’s Policy on Competing Human Rights
• having in place a clear and comprehensive competing rights policy that:
• sets out the process to be followed when a competing rights situation arises
• alerts all parties to their rights, roles and responsibilities
• commits the organization to deal with competing rights matters promptly and efficiently.

Taking proactive and effective steps to address competing rights matters will help to protect organizations from liability if they are ever named as a respondent in a human rights claim involving competing rights.

What are competing rights?

In general, competing human rights involve situations where parties to a dispute claim that the enjoyment of an individual or group’s human rights and freedoms, as protected by law, would interfere with another’s rights and freedoms. This complicates the normal approach to resolving a human rights dispute where only one side claims a human rights violation. In some cases, only one party is making a human rights claim, but the claim conflicts with the legal entitlements of another party or parties.

While many situations may at first appear to involve competing rights, one must recognize that not all claims will be equal before the law: some claims have been afforded a higher legal status and greater protection than others. For example, international conventions, the Canadian Charter of Rights and Freedoms, provincial human rights legislation and legal decisions all recognize the paramount importance and unique status of human rights.

Other non-human rights-related rights may also be protected in legislation, but may not have the same status that human rights do. Claims may also be based on interests or values held by individuals or groups.

While there are many situations in which rights, interests, and values may seem to conflict or compete, when evaluating situations of competing rights, human rights and other legally codified rights will usually hold a higher status than interests and values. The OHRC’s Policy on Competing Human Rights is meant mainly to be a tool for resolving situations where there is a conflict of human rights and rights that are legally protected.

Examples of competing rights situations[1]

A competing human rights situation exists when legally protected rights are present in both claims, and at least one of the claims connects to human rights law. Based on this definition, allegations of competing human rights scenarios might include:

1. Code right v. Code right
2. Code right v. Code legal defence
3. Code right v. other legislated right
4. Code right v. Charter right
5. Code right v. common law right
6. International treaty right v. Code/Charter defence
7. Charter right v. Charter right.

Key legal principles^[2]

While the courts have not set a clear formula or analytical approach for dealing with competing rights, legal decisions have identified a number of fundamental principles that provide direction on how to deal with these types of scenarios, as well as what to avoid. The courts have recognized that the specific facts will often determine the outcome of the case and claims should be approached on a case-by-case basis. The main legal principles that organizations must consider when they deal with competing rights situations are:

1. No rights are absolute
2. There is no hierarchy of rights
3. Rights may not extend as far as claimed
4. The full context, facts and constitutional values at stake must be considered
5. Must look at extent of interference (only actual burdens on rights trigger conflicts)
6. The core of a right is more protected than its periphery
7. Aim to respect the importance of both sets of rights
8. Statutory defences may restrict rights of one group and give rights to another.

Analysis for addressing competing human rights situations

The Policy on Competing Human Rights includes a framework for addressing competing rights that the OHRC developed based on international human rights principles, case law, social science research, and consultation with community partners and stakeholders.[3] The following table summarizes the framework’s three-stage, five-step process for recognizing and reconciling competing human rights claims:

Process for addressing competing human rights situations

Stage One: Recognizing competing rights claims

          Step 1: What are the claims about?

          Step 2: Do claims connect to legitimate rights?

(a)   Do claims involve individuals or groups rather than operational interests?

(b)   Do claims connect to human rights, other legal entitlements or bona fide reasonable interests?

(c)   Do claims fall within the scope of the right when defined in context?

          Step 3: Do claims amount to more than minimal interference with rights?

Stage Two: Reconciling competing rights claims

          Step 4: Is there a solution that allows enjoyment of each right?

          Step 5: If not, is there a “next best” solution?

Stage Three: Making decisions

• Decisions must be consistent with human rights and other laws, court decisions, human rights principles and have regard for OHRC policy
• At least one claim must fall under the Ontario Human Rights Code to be actionable at the Human Rights Tribunal of Ontario

Organizational process for addressing competing rights^[4]By implementing the OHRC’s proposed approach, organizations can be confident that they have a conflict resolution process in place that is consistent with human rights principles.

Many competing rights situations can be quickly resolved through an informal process that may involve no more than one or two meetings. At the outset, organizations should consider whether the situation is suited to an informal and expedited process. For example, the facts of the situation and the framing of each claim may be straightforward and not in dispute. The parties may already be well-informed about each other’s claims, rights and obligations. They may have shown respect for each other’s interests and be willing to engage in discussions about solutions without delay.

A quick process will generally involve running through the analysis with both parties in a quick way. The focus here is less on a precise analysis of the rights at play, and more on finding solutions that benefit all sides and respect human rights. If the informal, quick process does not resolve the issue, then the organization may decide to use a full and more formal process. However, it is important to consider a quick resolution process first because workable solutions can be found relatively quickly in most cases of competing rights claims.

In a full, more formal process, the framework is applied more rigorously at Stage One
to find out if a genuine competing human rights situation exists. If, after going through Stage One, an organization concludes that a competing human rights situation does exist, Stage Two will help guide it through the reconciliation process. The Policy on Competing Human Rights proposes an alternative dispute resolution (ADR) model to guide organizations through the Three Stage Analysis.

Conclusion

Competing human rights situations will inevitably arise in many different contexts, including workplaces, housing and schools. By following the approach outlined in the Policy on Competing Human Rights, organizations may be able to resolve tension and conflict between parties at an early stage. Resolving conflict early helps organizations to address matters before they fester and become entrenched. This in turn helps ensure the health and functioning of an organization, and can avoid costly and time-consuming litigation.