1. Introduction

“All human beings are born free and equal in dignity and rights.”^[5]

As they interact with each other, individuals and organizations will encounter situations of tension and conflict. 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 rights 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. How do you resolve a situation where a religious employer requires an employee to sign a “morality pledge” not to engage in certain sexual activity? Or, where a woman wants to testify wearing a niqab (a face veil worn by some for religious reasons) at the criminal trial of her accused? Or, where a professor’s guide dog causes a student to have a severe allergic reaction?

The Canadian Charter of Rights and Freedoms (the Charter), provincial human rights legislation 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 and protection against discrimination and harassment based on gender, creed, sexual orientation and disability, among other grounds. They require that all rights be given equal consideration. The law also recognizes that rights have limits in some situations, particularly where they substantially interfere with the rights of others.

In recent years, competing human rights claims have emerged as a challenging issue for human rights commissions across Canada. The Ontario Human Rights Commission (the OHRC) has found that human rights claims increasingly involve situations where it appears that multiple claims are at stake. For example, a claimant may say that their statutory human rights have been violated by a respondent who then, in turn, claims a defence that is also established by human rights legislation. The human rights grounds most often cited in competing human rights claims include gender, creed, sexual orientation and disability, although other grounds and legal rights have also been invoked.

Ontario’s Human Rights Code (the Code) says the OHRC’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 to help address difficult situations involving competing rights.

Case law dealing with competing human rights claims has been developing slowly in Canada. 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, to the greatest extent possible. This search can be challenging, controversial, and sometimes dissatisfying to one side or the other. But it is a shared responsibility and will be made easier when we better understand the nature of one another’s rights and obligations and show mutual respect for the dignity and worth of everyone involved. Finding the best solution for maximizing enjoyment of rights takes dialogue and even debate. To this end, there is a clear need for human rights policy guidance to supplement legal interpretation.

The OHRC has found that public debates on competing rights often relate to the presence of minority communities and how far the dominant culture should accommodate the rights of these groups. For example, in the post 9/11 world, various cultural and religious practices of Muslims have been called “inappropriate” or “unacceptable” by elements of the majority culture. These scenarios have commonly been referred to as matters of “competing rights” in the media. Others have questioned the extent to which publicly-funded schools ought to incorporate recognition of and respect for sexual diversity, including diverse family forms such as same-sex families.

The Right Honourable Beverley McLachlin, the Chief Justice of the Supreme Court of Canada, has extensive experience in the areas of human and Charter rights. She has written:

We need human rights. Whether we like it or not, religious, ethnic and cultural diversity is part of our modern world – and increasingly, part of our national and community reality. Human rights and the respect for every individual upon which they rest, offer the best hope for reconciling the conflicts this diversity is bound to generate. If we are to live together in peace and harmony – within our nations and as nations in the wider world – we must find ways to accommodate each other. [6]

The OHRC engaged in extensive background work to develop this policy. In addition to conducting legal and social science research, the OHRC developed a detailed case law review on competing rights.[7] The OHRC also met with a wide range of individuals and organizations that either deal directly with competing rights situations, or have significant expertise in the area. For more detail on the policy development process, see Appendix B.