6. Analysis for addressing competing human rights situations

This section is based on 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.[79] The framework is set out in a summarized chart form at Appendix C.

The framework was developed with organizational settings in mind. This is where most competing rights situations happen and where they are best resolved. Employers, service providers, housing providers, unions and others have a legal obligation to address all human rights matters that may arise. This policy outlines a process to help organizations recognize and reconcile competing human rights claims. It is also an analysis tool that can be used by lawyers, mediators and adjudicators.

It is critical that all parties involved have a chance to be heard and to hear the perspectives of opposing parties. As the Ontario Court of Appeal has noted:

If a person has a full opportunity to present his or her position and is given a reasoned explanation for the ultimate course of conduct to be followed, the recognition afforded that person’s rights by that process itself tends to validate that person’s claim, even if the ultimate decision does not give that person everything he or she wanted.[80]

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. The framework helps organizations recognize and address any power imbalances that may exist and take steps to empower all parties involved. Also, having an objective process removes some of the elements of individual discretion on the part of each decision-maker, and helps parties to feel they are being treated fairly and in accordance with standard procedures.

By following the approach outlined in the framework, organizations can take steps to resolve tension and conflict between parties at an early stage. Resolving conflicts 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.

The following 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 law, 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

6.1 Stage One: Recognizing competing rights claims

At one point or another, most organizations will face situations where the values, interests and rights of individuals come into conflict. Stage One guides organizations to three areas of inquiry to help determine whether claims amount to competing human rights.

Recognizing whether the claims involve legal “rights” is a preliminary consideration separate from reconciling claims. This is a crucial part of the analysis, even if the organization does not believe the situation involves competing rights. It helps educate parties about their human rights and responsibilities, an especially important goal given the general lack of public awareness and ambiguity around rights and related language. This in turn may help parties frame their claims properly.

At the outset, parties should try to be open and suspend judgement.  Often there is a tendency for rivals to deny the legitimacy of each other’s rights claims. Working through this stage in a respectful and earnest way gives people a voice, helps diminish power imbalances (especially for historically marginalized groups), shows genuine consideration of different positions, and promotes the dignity of all claimants. It also encourages a spirit of cooperation that is very important for the reconciliation stage.

6.1.1 Step 1: What are the claims about?

Step 1 of the framework helps organizations draw out a detailed picture of each claim and the underlying situation or context. Parties should include facts, their perceptions about what happened, and views about the potential rights, values, and/or interests that may underlie the situation. It is important for parties to take part fully in this step. As one author notes:

Hearing directly from the people affected is crucial to developing effective and responsive ways to resolve tensions between or among rights claims. Those who experience a denial of their rights have a unique perspective on why that is the case and appropriate remedies.[81]

A broad, inclusive approach will help to give a full appreciation of the social and factual context in which the conflict arises. Such an approach also helps to avoid dismissing relevant factors prematurely, and helps to frame claims properly. Only then can it be determined if the situation is actually one of competing rights.

6.1.2 Step 2: Do claims connect to legitimate rights?

Once the claims and context become clear under Step 1, organizations move to Step 2 to consider three questions to determine whether the claims connect to actual rights:

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

(b)   Does at least one claim fall under a human right?

(c)   Do claims fall within the scope of the right?

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

Under the Code, many organizations, including employers, service providers, housing providers and unions have a duty to accommodate the Code-related needs of individuals. As part of determining what each claim is about, organizations must distinguish between claims that solely affect business operations from competing claims that affect the rights of other individuals and groups. Claims that affect business operations alone are properly considered within the scope of the duty to accommodate (i.e. whether an accommodation is appropriate or amounts to an undue hardship) and are not competing human rights claims.

Example: An employee claims discrimination when her employer denies her request for modified work hours to meet childcare responsibilities. Her request does not appear to affect the legal rights of others. Therefore, this situation is not a “competing rights” claim, but rather is one involving a request for human rights accommodation. The employer might argue undue hardship based on financial impact for his business, which could limit his duty to accommodate.

A request for accommodation may turn out to be a competing rights situation if, while dealing with the accommodation request, it turns out that the rights of another person or group might also be affected.

(b) Does at least one claim fall under a human right?

As part of this step, organizations must identify whether their claims are legally recognized (in other words, whether they are protected by the law). Rights might be guaranteed by the Constitution (including the Charter), legislation, international treaties or court decisions. It may help to ask: if the allegations were true, which rights would be violated? This may be straightforward in most cases. For example, one party might identify that they have a need that requires accommodation under the Ontario Human Rights Code. Another party might identify a Charter right, such as the right to make full answer and defence. Other claims may not fall under a legislated right, but could connect to situations already dealt with by a court, such as the right to peaceful enjoyment of public parks in the midst of a demonstration.

(c) Do claims fall within the scope of the right?

Organizations must determine whether each claim falls within the “scope” of the right. There may be a general right at play, but does it extend as far as the claim made in a particular situation? Are the rights claims characterized appropriately? Organizations should examine the claims in their context and compare the situation with any parameters already set by legislation or courts for similar situations. As mentioned earlier, sometimes legislation itself will put limits on rights it seeks to protect, or will provide defences to proactively address situations where rights may potentially compete.

Example: The scope of the right to non-discrimination in employment under the Code does not extend to personal care attendants hired directly by people in need. A person may hire someone of the same sex, for example, to provide their personal care.[82]

Other times, the setting or sector may affect the limits on the exercise of a right.

Example: A woman objected to an inscription on a monument donated by a Catholic men’s organization that was located on property owned by the Catholic Church. She stated that the reference to life “from conception until natural death” is a statement against abortion, which is offensive and discriminatory because it denounces, victimizes and excludes women. She also claimed that the inscription violated her right to be free from religious coercion, including religious messages. The inscription could not be read from the public sidewalk and could only be read by a person on church property. In a summary hearing process, the Human Rights Tribunal of Ontario dismissed the claim saying it has no jurisdiction to examine the content of religious teaching and beliefs, particularly where these are conveyed on the premises of a religious organization.[83]

The breadth of the right to freedom of expression as it relates to communicating offensive language will also vary depending on the context. For example, in media commentary, the right might be interpreted very broadly, but in a school or workplace it may be interpreted more narrowly. The Criminal Code sets out limitations on expressions of hate in both contexts.

In accordance with accepted rules of statutory interpretation, when considering the scope of rights, organizations should interpret rights broadly and defences narrowly (except where defences also recognize and promote the competing rights of other groups in society). The answer might be in previous tribunal or court decisions, which have decided limits in similar circumstances.

Many apparent rights conflicts may be resolved by asking whether the claims actually fall within the scope of the right in the particular context. Properly delineating or making reasonable adjustments to the rights may make it possible to resolve any conflict between them. After properly scoping the boundaries of the rights, there might be no actual intrusion of one right onto the other. As Justice Iacobucci has noted:

B. (R.) is a classic example of definitional reconciliation. Where a parent’s right to religion is defined as not extending to the right to allow for religious medical choices which can harm a child, there really is no conflict between freedom of religion and life, liberty, and security of the person. This sentiment was echoed in Trinity Western where the Supreme Court noted that ‘this is a case where any potential conflict should be resolved through a proper delineation of the rights and values involved.
In essence, properly defining the scope of the rights avoids a conflict in this case (emphasis in original).’[84]

Interpreting whether the scope of a right extends to claims made in a particular situation will often be open to debate. Again, the OHRC’s framework encourages parties not to prematurely dispose of a claim unless there is a solid legal basis for doing so.[85]

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

Where the scoping exercise does not resolve the conflict, it is necessary to determine the extent of the interference with the rights in question. If interference with a right is minor or trivial, the right is not likely to receive protection. There is no conflict unless there is a sufficient interference with, burden or intrusion on a right. Where the impact on one right is minimal or insignificant, that right must give way to the other.[86] If enjoying one right does not result in a real burden or impact on the other, the rights are not actually in conflict and do not need to be reconciled.[87] It is instructive to ask whether the “core” or fundamental aspect of a right is engaged. Where the conduct is at the “periphery” of a right, it will more likely need to give way to a right whose core values are engaged.[88]

Organizations need to determine whether a situation amounts to more than minimal interference on a claimant’s rights. For this interference to be found, a relevant rights-related distinction or factor must exist, flowing from either claim, that imposes burdens, obligations or disadvantages not imposed upon others, or withholds or limits access to opportunities, benefits and advantages available to others.[89] Sometimes parties perceive interference where none really exists.

Example: Courts have generally rejected arguments made against same-sex marriage legislation on the basis that it offends religious rights. The courts generally agree that permitting such marriages for others does not substantially interfere with the religious rights of people opposed to same-sex marriage, unless religious organizations must perform those marriages.

If there is substantial interference with the rights in question, then the decision-maker must shift to a reconciliation exercise.

6.2 Stage Two: Reconciling competing rights

If the inquiries in Stage One show that a competing human rights situation exists, then organizations should move to Stage Two to see if rights can be reconciled. Ideally, reconciliation would result in neither side having to give up anything substantial. As a next best solution, it might involve parties having to give up things that are perhaps negotiable or at the periphery of a right, this being determined by legal principles or jurisprudence. Step 4 sets out the considerations involved in finding an “ideal” reconciliation. Step 5 looks at finding a “next best” solution when an ideal resolution is not possible.

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

Reconciliation is a process for exploring options to reduce or eliminate interference and allow full or at least “substantial” exercise of the rights of all parties within the given context. Often, reconciliation will involve changing conditions or adjusting the way one or both parties enjoy their rights. This may look like a multi-party human rights accommodation process involving secondary changes such as altering schedules, working conditions, activity locations, and so on.

Example: A woman with a disability uses a service dog to perform her work duties as a teacher, but a student in the classroom has her disability (allergies) triggered by the presence of the service dog. The Code requires employers to accommodate the needs of employees with disabilities, and it would also require educational institutions to accommodate the needs of students with disabilities. The Code does not prioritize these needs or requirements — one is as important as the other. However, these competing rights claims might be resolved by assessing the needs of both parties.

The employer/service provider would first need to look at the accommodation needs of both the employee and the student in the context of the classroom to find out if the needs of the two parties are actually in conflict. In what ways is the service dog assisting the employee in the classroom? Are there other ways that support could be provided without the service dog?[90] Alternative options for meeting the student’s needs should be similarly looked at. In this case, there may be other instructors the student can study with, or other sessions she could attend. The employer/service provider should then explore a combination of solutions for accommodating both, allowing each to enjoy their rights.

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

If the reconciliation process does not lead to an ideal solution, there is still a duty to explore options that least impair or compromise a right. Even if one right prevails in the circumstances, there may still be a duty to accommodate the other claim to some degree.

Exploring ideal and next best solutions inevitably involves limiting or compromising rights. Organizations should apply established principles from human rights case law and OHRC policy. Undoubtedly, selecting, weighing and applying principles can lead to differing results. One human rights principle alone may not provide an answer. Consider principles together with the full context in mind. The following principles, which are discussed in greater detail in the “Key legal principles” section of this policy, will assist organizations as they search for next best solutions:

1. No rights are absolute
2. There is no hierarchy of rights
3. Aim to respect the importance of both sets of rights
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. Statutory defences may restrict rights

The OHRC’s framework offers a fluid approach to recognizing and reconciling competing rights. Organizations may need to go back to previous steps in the framework to test options for solutions; for example, whether a proposed option would now make the impact on rights insignificant.

Any limitation of a right should consider human rights values, including respect for human dignity, inclusion of all, community and social harmony, and the collective interests of minority or marginalized groups.

6.3 Stage Three: Making decisions

When it comes to addressing competing rights, organizations are not a neutral third party. They have a legal obligation to deal with competing human rights claims just like any other human rights matter that may arise in their environment. Ultimately, organizations will need to decide on and endorse an outcome. Along the way, they must remember their legal obligations and make sure parties understand the process. They must also make sure that any resolution reflects OHRC policy and is consistent with human rights and other law, court decisions and human rights principles.

By acting in accordance with human rights principles, organizations are taking steps to protect themselves from liability if they are ever named as a party in a case before the Human Rights Tribunal of Ontario or a higher court.

Other parties — potential claimants, respondents and unions, where applicable — also have a shared responsibility to act in good faith, show dignity and respect for one another, and cooperate in a process to recognize rights and find solutions for everyone involved. In other words, you cannot expect respect for your rights without respecting the rights of others.

After working through Stage One, organizations may find that competing human rights are not ultimately involved. The organization should communicate this assessment to the parties, but should still consider addressing the matter. In fact, in many cases, the organization may have a legal obligation to do so. Even if a claim is not interfering with someone else’s rights, the organization will still have a duty to maintain a non-discriminatory, harassment-free environment and to accommodate any Code-related needs a person may have.

In other cases, an organization may assess the situation and decide that engaging claimants in a process is not needed, not desirable, or impossible. For example, the organization may have already dealt with a similar situation before and now has a policy on how to deal with these matters going forward. Or, the organization may decide the situation is too contentious or complex to reconcile and it may wish to seek legal advice instead.

Some claimants may raise claims that the organization feels lack merit, they may be unwilling to take part in a reconciliation process, or parties might not be able to reach agreement. While the organization might take action unilaterally, it should consider the decision to do so carefully and communicate clear reasons to the parties involved. One or both parties may not be satisfied and they may ask the organization to reconsider the decision. Parties may also have the option of taking their case to the Human Rights Tribunal of Ontario or another legal decision-maker.

For a party to bring their competing rights claim to a human rights tribunal, at least one of the claimed rights must fall under a human right established by law. For example, if one of the parties wishes to bring the matter to the Human Rights Tribunal of Ontario, then their claim must connect to the Ontario Human Rights Code.

In most cases, the organization will find it beneficial to engage in a process that tries to recognize and reconcile competing rights rather than make a unilateral decision.