9.1 The Ontario Human Rights Code
Sections 1, 2, 3, 5, 6 and 9 of the Code set out the basic right to equal treatment without discrimination because of sex in services, goods and facilities, housing, contracts, employment and vocational associations.
Sections 7(1) and (2) set out a person's right to be free from harassment based on sex and inappropriate gender-related comment and conduct in housing and employment.
Section 7(1) states:
Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.
Section 7(2) states:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
Section 7(3)(a) prohibits sexual solicitation by a person in a position to confer a benefit, etc. It states:
Every person has a right to be free from a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome.
The Code contains no set provisions dealing with sexual harassment in services, goods and facilities (section 1), contracts (section 3) or membership in trade and vocational associations (section 6). However, sexual harassment in such situations would be a violation of sections 1, 3 and 6, which provide for a right to equal treatment without discrimination based on sex related to services, goods and facilities, contracts and membership in trade and vocational associations respectively.
Section 10(1) defines "harassment" as meaning “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
As mentioned previously, with the addition of “gender expression” as a protected ground to the Code in 2012 (“gender identity” was also added at the same time), many, if not most, forms of gender-based harassment would now be prohibited under the ground of gender expression. Depending on the circumstances, the ground of gender identity may also be applicable. Therefore, a person who has experienced gender-based harassment could file a claim with the Human Rights Tribunal of Ontario alleging sexual harassment, as well as discrimination and/or harassment based on gender expression, where appropriate. Where it applies, they could also cite the ground of gender identity. See “2.3.3 Gender-based harassment” for more information.
9.1.1 Reprisal
Section 7(3)(b) sets out a person's right to be free from reprisal or threats of reprisal for rejecting a sexual solicitation or advance by someone who is in a position to grant
or deny a benefit. Section 7(3)(b) states:
Every person has a right to be free from a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
Section 8 provides a broad protection against reprisal for claiming and enforcing any right under the Code. Section 8 states that:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act, and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
This section provides protection from reprisals relating to any form of sexual harassment and/or discrimination because of sex.[203]
Subjecting someone to hostility, excessive scrutiny (for example, at work), social exclusion, or other negative behaviour because they have rejected a sexual advance or other proposition (such as a request for a date) are all forms of reprisal.
Section 8 (or section 7(3)(b), depending on the circumstances) applies when a respondent's treatment of a claimant is at least in part a reprisal for raising issues of sexual harassment.[204]
A person is protected from reprisal or the threat of it whether the sexual harassment claim is ultimately proven or not.
9.2 International protections
Canada has signed and ratified many international covenants that recognize the importance of respecting and protecting women’s rights. These include:
- The Universal Declaration of Human Rights[205]
- The International Covenant on Civil and Political Rights[206]
- The International Covenant on Economic, Social and Cultural Rights[207]
- The Convention on the Rights of Persons With Disabilities[208]
- The Declaration on the Rights of Indigenous Peoples[209]
- The Convention on the Elimination of All Forms of Discrimination
Against Women[210] - The Declaration on the Elimination of Violence Against Women[211]
- The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[212]
The Convention on the Elimination of All Forms of Discrimination Against Women speaks directly to the need to remove the barriers in employment, education, health care, housing, etc. that prevent girls and women from becoming full and equal participants in society. The Declaration on the Elimination of Violence Against Women, which complements and strengthens the Convention on the Elimination of All Forms of Discrimination Against Women, specifically recognizes “sexual harassment and intimidation [of women] at work, in educational institutions and elsewhere” as a form of violence against women.[213] The Declaration states:
[T]hat violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.[214]
As a signatory to these conventions, Canada has agreed to uphold the values and rights guaranteed in them. The challenge for Canada is to make these high-level principles a lived reality for Canadians. All levels of government have a responsibility to take steps to make sure sexual harassment, and other forms of discrimination based on sex, do not prevent girls and women from fully taking part in all sectors of society. Human rights bodies across Canada play a key role in making this happen. In Ontario, the Ontario Human Rights Commission has a special responsibility to help Canada fulfill its international human rights commitments. This policy is one step the OHRC is taking to help Canada do so.
[203] See Demars v. Brampton Youth Hockey Association, 2011, supra, note 68, in which a tribunal found that the respondent hockey association committed reprisal when it removed a mother from a committee as a volunteer because she instituted proceedings under the Code. See also Q. v. Wild Log Homes Inc., 2012, supra, note 48 at para. 155, in which a tribunal found that filing a civil claim seeking damages for filing a human rights complaint is “a clear, substantive and particularly chilling type of retaliatory conduct against a complainant.”
[204] See Murchie v. JB’s Mongolian Grill (No. 2) (2006), supra, note 10; deSousa v. Gauthier (2002),
supra, note 27; Elkas v. Blush Stop Inc. (1994), 25 C.H.R.R. D/158 (Ont. Bd. Inq.). See also Q. v. Wild Log Homes Inc., ibid.
[205] Universal Declaration of Human Rights, 10 December 1948, General Assembly resolution 217A (III), UN Doc. A/810.
[206] International Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 (entered into force 23 March 1976, accession by Canada 19 May 1976).
[207] International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46 (entered into force 03 January 1976, accession by Canada 19 August 1976).
[208] Convention on the Rights of Persons with Disabilities, 24 January 2007, A/RES/61/106 (ratified by Canada on March 11, 2001).
[209] Declaration on the Rights of Indigenous Peoples, 2 October 2007, A/RES/61/295 (ratified by Canada on November 12, 2010).
[210] Convention on the Elimination of All Forms of Discrimination Against Women, supra, note 88.
[211] Declaration on the Elimination of Violence Against Women, supra, note 89.
[212] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, (1984) 23 I.L.M. 1027, Can. T.S. 1987 No. 36 (in force 26 June 1987; ratified by Canada 24 June 1987).