Language selector

Analytical framework

Page controls

Page content

General principles regarding the interpretation of human rights legislation

In considering the interpretation and application of section 14(1) of the Code to the para-transit services in question, it is important to articulate the principles which govern how human rights legislation ought to be interpreted.

A human rights code is not like an ordinary law.  It is a fundamental law which declares public policy.[46] Because a human rights code is not an ordinary statute, rules of statutory interpretation which advocate a strict grammatical construction of the words are not the proper approach to take in interpreting its provisions; focusing on the limited words of the section itself would ignore the dominant purpose of human rights legislation. [47] A human rights code is remedial legislation and is to be given such interpretation as will best ensure its objects are attained. [48]

Equality in Provision of Services

The Code provides that “every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or disability.”[49] In order to establish a prima facie case of discrimination a complainant must show that he or she has been subjected to differential treatment in services, goods or facilities based at least in part on one of the listed protected grounds. In the disability context, differential treatment can arise when there is inequality of access to a service, good or facility.

The Duty to Accommodate

Accommodation is an integral part of the right to equal treatment guaranteed in the Code.  Accommodation refers to what is required in the circumstances to avoid discrimination and achieve equality.[50] There is no particular formula or standard that must be employed when accommodating persons with disabilities, however there are certain principles that serve to guide the process of accommodation.

First, the duty to accommodate persons with disabilities requires that accommodation must be provided in a manner that most respects the dignity of the person, if to do so would not create undue hardship.  Second, individualization is the essence of accommodating persons with disabilities, hence, there is no set formula for accommodation.  Third, the goal of accommodation is to allow for the integration and full participation of persons with disabilities into our communities.  To achieve these goals, those governed by human rights legislation (service-providers) are required in all cases to accommodate the characteristics of affected groups within their standards and designs.[51] In addition, existing barriers must be removed.  Finally, differential treatment or a modified service may be required in order to provide equal access where inclusive designs and removal of existing barriers do not allow for full participation. [52]

Where prima facie discrimination has been established, the service provider can respond that it is accommodating the needs of people with disabilities to the point of undue hardship, pursuant to sections 11 and 17 of the Code.  In 1988, the Code was amended to incorporate this concept of accommodation short of undue hardship. Prior to 1988, a respondent could escape liability if the only reason for the alleged liability was lack of access or “lack of amenities” for people with disabilities. [53] The current legislative regime imposed the duty to accommodate on all service providers in Ontario as of April 1988. The content of the duty to accommodate was described by the Supreme Court of Canada in Central Okanagan School District No. 23. v. Renaud [54] as follows:

... More than mere negligible effort is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test. The extent to which the discriminator must go to accommodate is limited by the words "reasonable" and "short of undue hardship". These are not independent criteria but are alternate ways of expressing the same concept. What constitutes reasonable measures is a question of fact and will vary with the circumstances of the case.

The Supreme Court in Grismer [55] and Meiorin [56] reinforced this concept. In Grismer, the Court confirmed that “those who provide services subject to the Human Rights Code must adopt standards that accommodate people with disabilities where this can be done without sacrificing their legitimate objectives and without incurring undue hardship.” [57]

The first duty is to design systems to be as inclusive as possible, following the principles of universal design. No new barriers should be created, and any existing barriers should be removed progressively over time. Some barriers are more complex than others. Therefore, easier barriers should be removed first, and more complex or expansive barrier-removal solutions can be phased in. Although a system may never reach full inclusiveness, the duty is to maximize inclusiveness to the highest possible extent. Any remaining unmet need must be accommodated short of undue hardship.

Special Programs

Section 14 of the Code allows special programs to be implemented that might otherwise be considered to be discriminatory under the Code.  Section 14(1) defines a special program as a program that is:

  • designed to relieve hardship or economic disadvantage; or
  • designed to assist disadvantaged persons or groups to achieve equal opportunity; or
  • likely to contribute to the elimination on the infringement of rights protected under the Code.

The implementation of a special program can assist groups of people who historically experience discrimination, economic hardship and disadvantage by putting into place measures that respond to the particular needs of these groups which helps to reduce discrimination.  These “programs” are protected by section 14.

In evaluating whether programs can be protected from review under the Code, the dual purpose of section 14(1) – protection of affirmative action programs and the promotion of substantive equality - must be borne in mind: [58]

Protection of Affirmative Action Programs

Section 14(1) is linked explicitly to the notion of protecting from review under the equality provisions contained in Part I of the Code affirmative action programs challenged on the basis of formal equality. Hansard debates demonstrate this aim of the Legislature:

Provision is made to exempt affirmative action plans or programs legitimately designed to benefit particular classes of persons.  This is in response to the view expressed by many special interest groups that special programs to help their members achieve equal opportunity should be allowed to operate with the minimum amount of difficulty. [59]

Members of advantaged groups cannot, therefore, use the Code to strike down special programs from which they are excluded.

Promoting Substantive Equality

The second purpose of section 14(1) of the Code is to promote substantive equality.[60] The purpose of section 14(1) is not simply to exempt or protect affirmative action programs from challenge.  It is also an interpretive aid that clarifies the full meaning of equal rights promoting substantive equality.  Thus, section 14(1) must not be interpreted and applied in a manner, so as to prevent a program from review, when to do so would permit substantive equality to be undermined.

Special programs must be designed and must operate  “so that restrictions within [the] program are rationally connected to the program. Otherwise, the provider of the program will be promoting the very inequality and unfairness it seeks to alleviate.”[61] Restrictions in the program cannot be arbitrary, and indeed must be demonstrably related to the goal of the program. In other words, special programs must not include eligibility restrictions that unreasonably restrict who can benefit from them.

[46] Insurance Corp. of B.C. v. Heerspink [1982] 2 S.C.R. 145 at 158
[47] O’Malley v. Simpsons-Sears Ltd. [1985] 2 S.C.R. 536 at 546
[48] CNR v. Canadian Human Rights Commission (“Action Travail”) [1987] 1 S.C.R. 1114 at 1133
[49] Code, s. 1
[50] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3  S.C.R. 868 at para. 22 (“Grismer”)
[51] British Columbia (Public Service Employee Relations Commission v. B.C.G.S.E.U. [1999] 3 S.C.R. 3 at para. 68 (“Meiorin”)
[52] OHRC Policy and Guidelines on Disability and the Duty to Accommodate (2000)
[53] See discussion in Turnbull v. Famous Players Inc. (No. 1)(2001), 40 C.H.R.R. D/333 [Ont. Bd. Inq.] at para. 201.
[54] Central Okanagan School District v. Renaud [1992] 2 S.C.R. 970 at para. 19
[55] Grismer, supra.
[56] Meiorin, supra.
[57] Grismer, supra at para. 44.
[58] Ontario Human Rights Commission v. Ontario (1994), 117 D.L.R. (4th) 297 at 333 (“Roberts”).  This approach was confirmed by the Supreme Court of Canada in a Charter case, Lovelace v.Ontario [2000] 1 S.C.R. 950
[59] Ontario, Legislative Assembly Debates, vol. 5, pp. 5098 (December 9, 1980).
[60] Roberts, supra at p. 332
[61] Roberts, supra at p. 339


Book Prev / Next Navigation