Applying the code to tribunal cases (2011 06)


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  • Ontario Human Rights Code is the Ontario law prohibiting discrimination and harassment This therefore includes you: as employees in a workplace, and as service providers. I want to start off with the principles of the Code, as set out in the preamble. This is the guiding vision of the Code.. . It’s a vision of what Ontario should be like, and what services and workplaces should be like. It’s a vision of inclusion. Also, a vision of the ideal. It’s something to focus on and move towards, but really we are talking as much about a process as a result . The Code is a piece of legislation that binds all companies and organizations that fall under Ontario law, including both public and private sectors. Supercedes = PRIMACY – importance of human rights – quasi-constitutional, and. Like Charter , are based in international law and covenants
  • The Protection of the Code extends to five social areas. Complaints can be made against companies or organizations that fall under Ontario law. So, the Code applies to you in your work both as employers or employees , and as service providers – it also applies to you in your relations with other organizations – whether receiving or providing other services, In contractual relationships, in housing as landlords or tenants, and vocational associations, such as unions and professional associations E.g. if your neighbour were to call you names based on a Code ground, and both of your owned your own houses, no one could file an application, because it is out of a social area.
  • Workers: FT, PT, volunteer, contract, probationary, service people that come on site All aspects of employment: Practices, facilities, relations: Hiring: advertisements, application forms, interview process Extended workplace - Can anyone give me some examples of what may constitute the Extended workplace? – off-site events such as business trips, cafeteria, change room, office party, etc., conferences, when providing services off site
  • -Read bullet points. Could include advertising as well, provision of material on websites, etc. Services includes Tribunal services….identify: e.g. advice, intake, mediation, hearings. However, the case law debates whether a decision can be identified as a service and is subject to judicial immunity (cite cases). Refer to Tony’s presentation.
  • Covers the right to equal treatment when buying, selling, renting or being evicted from an apartment, house, condominium or commercial property. It also covers renting or being evicted from a hotel room. The Code applies to terms and conditions in contracts and leases such as the amount of rent, security deposits, the requirement of guarantors, occupants’ rules and regulations, lease termination and eviction. This right to housing without discrimination also includes suitable access to doors, laundry rooms, swimming pools, other common areas, repairs and other aspects of housing. A person’s social and economic status is highly relevant to their housing situation. More often than not, it will dictate the type of housing available and whether they will get the housing they are seeking. High market rents, insufficient social housing supply, low minimum wage and social assistance rates, and income-related rental requirements all make it very hard for a person who has low social and economic status to find and keep adequate housing. Tenants with low social and economic status are also more vulnerable to different treatment by housing providers. Groups who are identified by Code grounds are more likely to experience low social and economic status. Poverty is linked closely with inequality, particularly for women, Aboriginal people, racialized groups and people with disabilities. Therefore, policies and practices that disadvantage people who have low incomes are likely to also disproportionately disadvantage members of Code -identified groups.
  • disability more complaints received on this ground than any other. Age is 18 and older, (No upper limit as of December 10, 2006. Housing, 16-17 if withdrawn from parental control) Sex: gender identity (gender nonconformity, transsexual and transgendered people) explicit protection in the Code regarding sexual harassment, solicitation or advance made by a person in a position to confer, grant, or deny a benefit or advancement, and reprisal for refusing the sexual solicitation. sex o includes all orientations, but most from lesbians and gay men, or people mistreeaded b/c perceived as G/L Marital Status includes all – single, divorced, widowed, common-law, same/opposite-sex Family Status is defined in the Code as being in a parent-child relationship: eldercare and childcare. Parent-like Race -based complaints commonly involve another ground, particularly one or more of the six listed below it in this slide Creed: religion, faith, spiritual belief, or lack thereof. (E.g. in news these days anti-semitism, Islamophobia), freedom from pressure to conform to someone else belief. Record of offences and receipt of public assistance are only protected in certain social areas. A complaint may involve multiple grounds which sometimes intersect in particular ways (for example, discrimination or harassment based on stereotypes of Black young men, or of aboriginal single mothers). We call this “intersectionality” Do you have any questions about the grounds?
  • Discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. SCC, Andrews v. Law Society of British Columbia , 1989 “ showing a prima facie case of discrimination involves demonstrating a distinction based on a prohibited ground that creates a disadvantage by perpetuating prejudice or stereotyping.” Court of Appeal, Ontario (Disability Support Program) v. Tranchemontagne , 2010 Definition of discrimination and the test for discrimination are continuously evolving
  • Provincial Jurisdiction. Central role is to [read bullet] We do this through a number of means…. Public Education : opinion editorials, poster campaigns , website , partnerships (HRPAO, Government Ministries, Can. Race Rel. Fndtn, etc), and events such as this one. Policies - approved statements which set out the Commission’s interpretation of specific sections of the Code - direct the Commission’s work, reference documents for the public Also inquire into matters of concern (racial profiling inquiry), review and provide advice/make recommendations with respect to legislation, programs, policies practices that aren’t consistent with the Code.
  • Indirect: landlord telling management company he doesn’t want tenants with young kids. Third-party preference is not an excuse – such as a car-parts company who only wants male sales reps, because they think clients prefer men. Constructive: may be subtle, may/may not be intentional. Rule. P. or P may look neutral on its face but excludes or adversely affects individuals identified by Code grounds. C an be discriminatory by nature, or through unequal application (word-of-mouth hiring, income-rent ratios housing, Canadian experience requirements, height requirements for police) Systemic: when discrimination is embedded in policies, processes, decision-making practices and culture of an organization (e.g. Police Charter example) Association (give example) Reprisal –punished for claiming rights under Code – whether internal complaint, complaint to police or Tribunal Announced intent :E.g. job ad (eg. want people under 35) Harassment: “… course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome” Poisoned environment: occurs when individuals are subjected to negative comment or conduct directed at a person or Code-identified group that subjects people to terms and conditions of employment, tenancy, services that are quite different from those experienced by individuals who are not subjected to the comments or conduct. A single incident can be enough to cause a poisoned environment. - in other words, conditions that negatively affect both the person’s experience of the environment, and the likelihood that they can expect fair treatment in the future. “terms and conditions” includes emotional and psychological circumstances of the workplace or educational environment Perception : e.g someone makes negative comment about Muslims and kicks a (Sikh) person out of their store,
  • Intent is not necessary to ‘prove’ discrimination. Rather, the focus is on the impact on the complainant and whether or not unequal treatment has resulted. Intent is relevant where a respondent has indicated that there was intent to discriminate. 2. With “formal equality”, everyone is treated the same. However, human rights law recognizes that sometimes people needed to be treated differently, according to their unique circumstances, to achieve equal opportunity. “Substantive equality” means understanding and meeting the needs of disadvantaged persons or groups using historical, legal and social contexts. It takes into account discriminatory barriers in their many forms, not all of which are obvious or intended. Human rights law and the human rights system is not designed to “punish” individuals or organizations. Meant to put people back in the place they were before the discrimination occurred. OHRC’s emphasis on public interest remedies… The rights recognized in the Code should be interpreted broadly, while legislated exceptions to the exercise of these rights should be interpreted narrowly. Dickason v. University of Alberta (1992), 141 N.R. 1 (S.C.C.). Broad, liberal and purposive interpretation The burden of proving a prima facie case of discrimination rests with the complainant. After that, the burden shifts to the respondent to provide a defence under the Code . (R’s not required to prove program is not discriminatory) This was reaffirmed in Court of Appeal – Tranchemontagne (para 108)
  • These responsibilities apply to all organizations under Ontario law. Organizations have the ultimate responsibility for creating an environment that complies with the Code. Organizations may be held liable... This includes direct and constructive discrimination, as well as situations where the employer/service provider/housing provider condones/does not address behaviour of which they are aware, that is contrary to the Code. It means that individuals can be held individually liable for discriminatory conduct. It’s important to have complaints policies in place, and an internal process for handling complaints so organizations do not wait for an “official application” to the Tribunal
  • Applying the code to tribunal cases (2011 06)

    1. 1. How to Apply the Code in Tribunal Decisions Anya Kater & Tony Griffin Ontario Human Rights Commission
    2. 2. SOAR June 1, 2011 June 1, 2011 Presentation Overview • The Ontario Human Rights Code • The Ontario Human Rights Commission • Forms of discrimination • Organizational responsibility • Recognizing human rights in tribunal cases • Additional…
    3. 3. SOAR June 1, 2011 June 1, 2011 Overall principle: human dignity and respect • Preamble to the Ontario Human Rights Code speaks of human rights as founded on the idea that every human being has an innate dignity that endows them with rights that should be respected. Ontario Human Rights Code
    4. 4. SOAR June 1, 2011 June 1, 2011 Ontario Human Rights Code • Creating a climate of understanding and mutual respect for the dignity and worth of each person • Aims to ensure each person feels a part of the community and able to contribute fully • Provides for equal rights and opportunities without discrimination.
    5. 5. SOAR June 1, 2011 June 1, 2011 Ontario Human Rights Code • Code has quasi-constitutional status • Section 47(2) of the Code: The Code has primacy over all other legislation in Ontario, unless the other legislation specifically states that it applies notwithstanding the Code.
    6. 6. SOAR June 1, 2011 June 1, 2011 Ontario Human Rights Code Legal protections from discrimination • Enshrined in Ontario Human Rights Code, Charter of Rights and Freedoms, International Human Rights Conventions • Specific human rights protections afforded to multiple grounds in five social areas
    7. 7. SOAR June 1, 2011 June 1, 2011 Social areas Code prohibits discrimination and harassment in five social areas: • Employment • Services, goods & facilities • Housing (“occupancy of accommodation”) • Contracts • Membership in vocational and professional associations
    8. 8. SOAR June 1, 2011 June 1, 2011 Employment • All types of workers (including volunteers) • All aspects of employment • Recruitment • Hiring • Policies, practices, qualifications • Facilities • Training & Promotion • Benefits • Workplace environment • Discipline & termination • Extended workplace
    9. 9. SOAR June 1, 2011 June 1, 2011 Services • All service users protected • Provision of services by all types of staff • Defined very broadly includes: – Education – Policing, justice system – Health care – Private businesses, not for profit organizations – Government services
    10. 10. SOAR June 1, 2011 June 1, 2011 Housing • Rental housing (inc. social housing & co-op housing), also hotels, motels, houses, condominiums… • Applies to people involved in provision of rental housing as well as tenants.
    11. 11. SOAR June 1, 2011 June 1, 2011  Race  Ancestry  Place of origin  Colour  Ethnic origin  Citizenship  Creed (religion)  Sex (pregnancy, breastfeeding)  Sexual orientation  Gender Identity  Gender Expression  Age  Record of offences (in employment)  Marital status (all statuses, same-sex & opposite-sex)  Family status  Disability (including perceived & mental health disabilities)  Receipt of public assistance (in housing) Code grounds Code prohibits discrimination and harassment based on certain grounds:
    12. 12. SOAR June 1, 2011 June 1, 2011 Must contain 3 key elements: Identified ground + Social area + Differential impact (creates a disadvantage) = Human rights allegation (Allegation of discrimination) Allegation of discrimination
    13. 13. SOAR June 1, 2011 June 1, 2011 Role of the OHRC Section 29 The broad overall and over-arching functions of the Commission are expressed in section 29 of the Code: • To promote and advance respect for human rights • To protect human rights • To protect the public interest and identify and promote the elimination of discriminatory practices
    14. 14. SOAR June 1, 2011 June 1, 2011 Role of the OHRC Section 29 of the Code empowers the Commission to undertake: • Public education • Research & analysis • Policy development • Review of statutes, legislation, policies, programs • Role in “tension & conflict” • Public interest inquiries • Commission initiated applications & legal interventions • Monitoring & reporting
    15. 15. SOAR June 1, 2011 June 1, 2011 Forms of Discrimination  Direct  Indirect  Constructive  Systemic  Lack of accommodation  By Association  Reprisal  Announced intent  Harassment  Poisoned Environment  Perception
    16. 16. SOAR June 1, 2011 June 1, 2011 Code Principles • Impact vs. intent • Recognizes substantive equality • Remedial vs. punitive • Rights are interpreted broadly, defences narrowly • Burden of proof
    17. 17. SOAR June 1, 2011 June 1, 2011 Organizations are: • Obliged to provide an environment free from discrimination and harassment • Liable for discriminatory acts of employees or agents undertaken in the normal course of business • Organizations can be held liable if they condone, ignore or do not respond appropriately to acts of discrimination. Organizational Responsibility
    18. 18. How to recognize a human rights issue in the facts of a case
    19. 19. SOAR June 1, 2011 June 1, 2011 • Where does the human rights issue arise? • This will affect your ability to address it, and if you can address it, will shape the appropriate remedy.
    20. 20. SOAR June 1, 2011 June 1, 2011 Sources of human rights issues • The dispute between the parties to the adjudication (perhaps most common in landlord and tenant proceedings) • Other Legislation – Tranchemontagne or Coroners Act cases • Regulations – Hendershott or Health Services Appeal and Review Board case • By-laws – OMB Decision in Kitchener • Policies – Social Benefits Tribunal Decision 0707-08819 • The Tribunal’s Process • The Hearing and the Decision
    21. 21. SOAR June 1, 2011 June 1, 2011 Code grounds • Unlike Charter grounds, which may be enumerated or analogous, Code grounds are a specified list • race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability • “receipt of public assistance” with respect to housing rights • “record of offences” with respect to employment rights.
    22. 22. SOAR June 1, 2011 June 1, 2011 Areas in which discrimination is prohibited • Services, goods and facilities • Occupancy of accommodation • Contracts • Employment • Vocational Associations • Sexual harassment and solicitation • Reprisal
    23. 23. SOAR June 1, 2011 June 1, 2011 The Effect of Tranchemontagne • You must have a matter properly before you as an adjudicator • You will continue to be limited by the powers granted to you by statute • Social Benefits Tribunal Decision 0707-08819
    24. 24. SOAR June 1, 2011 June 1, 2011 What is discrimination? • Intention is irrelevant • Constructive Discrimination
    25. 25. SOAR June 1, 2011 June 1, 2011 The prima facie case • A distinction based upon an enumerated ground or a rule with a disparate impact because of an enumerated ground • Disadvantage flowing from the treatment
    26. 26. SOAR June 1, 2011 June 1, 2011 Defences • Section 11 • Section 17 • Section 24 • The defence of justification, post Meiorin
    27. 27. SOAR June 1, 2011 June 1, 2011 Remedies • Tribunal’s remedial powers are limited by legislation • Cannot decline to exercise Code jurisdiction • No power to make general declaration that a law is inconsistent with the Code • Decline to apply the provision that is inconsistent with the Code
    28. 28. SOAR June 1, 2011 June 1, 2011 QUESTIONS?
    29. 29. SOAR June 1, 2011 June 1, 2011 • Human Rights at Work • Developing Procedures to Resolve Human Rights Complaints within your Organization • Policy and guideline documents on discrimination and harassment relating to particular grounds, such as: – Disability, race, sexual harassment, gender identity, sexual orientation, creed, and pregnancy and breastfeeding. • All Commission publications are available on our website: OHRC Resources
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