Part 3 - Examples of Competing Rights Situations

Transcript
Competing Human Rights eLearning Module 3

NARRATOR:
Welcome to Module 3 of the Competing Human Rights Course.

Competing human rights situations may happen when the rights of a person or group come into conflict with the rights of others in housing, services, work situations, or other areas protected by the Code.

Competing human rights situations may involve the following:

  • Code right v. Code right
  • Code right v. Code legal defence
  • Code right v. other legislated right
  • Code right v. Charter right
  • Code right v. common law right
  • International treaty right v. Code/Charter defence
  • Charter right v. Charter right

It’s also important to know the difference between duty to accommodate claims and competing rights claims, because the two often get confused. An example of a duty to accommodate claim would be a person with a disability who is requesting an accommodation, like different work hours to match a para-transpo bus schedule. This might be difficult for an employer who needs employees to be at work during certain hours. It may seem like a competing rights situation because the rights of the person with a disability are competing against the needs of the employer - but in fact they are not. The employer has a legal duty to accommodate her employee. If she believes she cannot do so, she has to prove that the accommodation will cause undue hardship. This isn’t a competing rights issue because only one person is making a claim – the employee. The employer is not claiming that her rights are being violated, she is responding to her employee’s claim.

For more information about the duty to accommodate, please select the link on your screen.

[narrator appears back on the screen]

In this section, you’ll find examples that will help you clarify what is, and what is not, considered a competing human rights issue. Knowing the type of situation you’re dealing with is important, because then you can decide what steps to take next. We haven’t provided an example for each type of competing right, but if you want more information about a particular type, click on the one that you want to know more about.

You don’t have to look at all of the examples in module 3 right now, and you can always come back later to see any that you missed. You can also refer to the policy for more in-depth information and examples.

In a competing rights case, two people or groups are both making claims. The examples in this section will give you a good sense of what this could look like.

Thank you for watching this introduction, and I hope you enjoy Module 3!

Competing Human Rights eLearning
Transcript at http://ohrc.on.ca/en/learning/competing-human-rights/reducing-potential-...


Example 1 - Code right v. Code right: Competing rights at the office

Competing rights at the office

This example involves two Code rights, both on the ground of disability.

Photo of a smiling woman, Mira, on the phone.Mira works in an office with 25 other employees. She has been diagnosed with a chemical sensitivity disability. Perfumes and scented hand creams give her migraines, nausea and make her feel dizzy. Her manager is aware of her disability and has tried to make sure that the other employees don’t wear perfumes or scented products to the office.

Photo of a man, Ramone, with a tube of skin cream.Recently Ramon, another employee at the office, was diagnosed with a severe skin condition. He has to use a medicated skin cream several times a day to treat his condition. The skin cream is scented, and causes Mira to react.

Mira told Ramon and their manager that Ramon’s cream is giving her migraines, nausea and dizziness when she comes to work.

Ramon told the manager that he understands Mira’s situation, but if he doesn’t use the cream, his condition will get worse and it will be hard for him to work.
This is a competing rights situation, because both Mira and Ramon have a Code right to have their disability accommodated.

We’ll talk more about how to resolve competing rights situations in Module 5 of this course, but not all competing rights situations are complicated. In fact, many can be resolved by talking. In this case, for example, a conversation with their manager might find that moving Mira or Ramon to cubicles on opposite sides of the office might solve the problem. Ramon could also see if there’s an alternative or unscented cream, or one of them could work remotely until Ramon’s condition has resolved.


Here are some discussion questions to think about:

  1. In this case, do you think one right is more important than another? Why?
  2. What do you think is the best way to resolve this competing rights situation?
  3. Who will be affected by your solution?

 

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Example 2 - Code right v. Code right: Visual fire alarms and epilepsy

Visual fire alarms and epilepsy

Photo of a fire alarm

Jan, a building manager, is updating the fire alarm system in his building. He installs audible alarms. He plans to also install visual alarms, to accommodate a resident who is deaf. A strobe light would be set off when fire alarms are activated, which alerts people with hearing impairments.

At the next building committee meeting, Jan presents his plans to the committee. One resident, Kelda, is pleased, because she is deaf and her disability is being accommodated.

But another resident, John, is concerned. He has epilepsy which could be triggered by the fire alarm’s flashing strobe light.

This is a competing rights situation, because both Kelda and John have a Code right to be accommodated because of their disability.


Here are some discussion questions to think about:

  • Do you think it’s possible to accommodate both their rights?
  • What other information would help to make this assessment?

 

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Example 3 - Code right v. Code right: Muslim barber and woman denied service

Muslim barber and woman denied service

Read the following excerpt from a news clipping about a competing rights case. This is an example involving two Code grounds – creed versus sex. When you’re finished reading, answer the questions at the bottom of the page.

You can also watch this CTV news video about the case.


Excerpt from:
Toronto barber shop won't cut women's hair on religious grounds
TORONTO NEWS/Lesbian denied 'businessman's cut' launches complaint to OHRC
Andrea Houston / Xtra! / November 03, 2012

All she wanted was a haircut.

But when Faith McGregor walked into the Terminal Barber Shop at Bay and Dundas streets, she was shocked to hear from the owner that no barber at the shop would cut a woman’s hair because it goes against their religious beliefs.

McGregor has since filed a complaint about the June incident with the Ontario Human Rights Commission (OHRC).

The shop wasn’t busy that day, she says, and two barbers were standing at the back of the store. “I asked, ‘Do you do a businessman’s cut?’ It’s a basic haircut. They said they do.”

After describing the cut, owner Omar Mahrouk stopped her. “He just looked at me and said, 'I can’t do that. We don’t cut women’s hair here.'”

McGregor says she was shocked. “I just wanted the exact same cut as they would give a man. Nothing different.”

[…]

Mahrouk told her “it’s against his religion” to cut a woman’s hair, she says. Mahrouk and two other barbers refused, all saying they practise Islam, which forbids them to touch strange women, she says.

For his part, Mahrouk admits that he denied McGregor service. “I can cut my wife’s hair, but not a strange lady. For me this is not discrimination. I explained that I have nothing against woman. This is my religion. She did not accept it.”

The Ontario Human Rights Code states that business owners can’t deny service based on sex.

“The law is the law, but this is my religion. But I am not discriminating against anyone,” Mahrouk insists. “It is against my religion.”

On the surface, the Human Rights Code says Terminal Barber Shop appears to have discriminated against McGregor based on her sex.

But it’s not that simple, says Pascale Demers, communications officer for the OHRC. This is a case of competing rights: the individual right of a person not to be discriminated against based on their sex or gender and the right of a person to hold religious beliefs.

“Generally speaking, services that are offered to the public should be made available to everyone without discrimination, based on sex, sexual orientation, race, religion, disability,” Demers says. “Each side will bring forward a defence that their rights trump the other.”

She says it’s a case that presents new terrain for the Tribunal. “We have been unable to find any cases like this. It’s unique. It will be looked at in an individual context, each with its own unique set of evidence. The tribunal will make a decision based on its set of facts presented to them.”

No rights are absolute, Demers says, and there is no hierarchy of rights.

“We look at cases individually,” she says. “We have to look at ways both sides can be accommodated.

But, absolutely, there will be instances where one side will be dissatisfied, though they are claiming a right.”


Here are some discussion questions to think about:

  1. Do you think one right should be treated as more important than the other? Why?
  2. What do you think is the best way to resolve this competing rights situation?
  3. Who will be affected by your solution?
  4. Could your solution impact others in similar situations? For example: people in remote communities, women who want other types of services, Muslim, or other religious, service providers, etc.

 

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Example 4 - Code right v. Charter right: Employer distributing Bibles and religious advice

Employer distributing Bibles and religious advice

Here is an example of a Code right (creed) versus a Charter right (freedom of religion and expression).

encourages them to attend church meetings, gives each a Bible as a gift for Christmas and asks them if they share his opinions on a variety of matters. Employees have made it clear that they do not welcome or appreciate his comments and conduct in their workplace and that they plan to file a claim under the Ontario Human Rights Code. This could be argued as a competing rights situation because:

  • The employees have a Code right to be free from discrimination and harassment based on creed (religion), which includes the right to be free from religion at work.
  • The employer may try to argue that applying the Human Rights Code in a way that prevents him from expressing his religious views in the workplace violates his Charter rights to freedom of religion and expression.

Photo of unhappy people in a dispute, one man faces the others offering a bible.

 

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Example 5 - Code right v. common law right: Temporary sukkah hut on condo balcony

Temporary sukkah hut on condo balcony

Photo of a balcony with a sukkah hut built on it.

Here is an example of a Code right (creed) versus a common law right (right to peaceful enjoyment of property).

In this example, a Jewish family is asked to remove a sukkah hut that they placed on their condominium balcony for religious celebration. The sukkah hut would normally stay up for nine days.

The sukkah hut does not comply with the condo’s by-laws and the neighbours are complaining that it’s interfering with their enjoyment of their property. They also claim that their property value will decrease.

The Jewish family claims that despite the condo’s by-laws, they have a right to accommodation under the Code because of their religion (creed). The condominium co-owners argue that they have a common law right to peaceful enjoyment of property.


Here are some discussion questions to think about:

  1. In this case, do you think one right should be treated as more important than the other? Why?
  2. What do you think is the best way to deal with this situation?
  3. Will anyone have to compromise? Why?

This example is based on a real case, Syndicat Northcrest v. Amselem. In this case, a Jewish family was asked to remove a sukkah because it did not comply with the condominium’s by-laws and was interfering with the neighbours’ enjoyment of their balcony. The Supreme Court refused to engage in a balancing process under section 1 of the Charter between freedom of religion as it affected the right to peaceful enjoyment and free disposition of property, since, in the Court’s view, the effect on the Jewish family was substantial while the effect on the co-owners was “at best, minimal,” and therefore limiting religious freedom could not be justified.

Here's a link to the court ruling on this case.

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Example 6 - Charter right v. Charter right: Niqab case

Niqab case

Read the following news clipping about a recent competing rights case. This is an example of Charter rights (creed and sex) versus another Charter right (right to a fair trial).

You can also watch a short CTV News video about the case.


CTVNews.ca Staff
Published Thursday, Dec. 20, 2012

In a split decision, the Supreme Court of Canada has ruled that a woman can wear a religious veil across her face while testifying in court – but only in certain circumstances.

The justices were not able to make a definitive ruling, which pits religious freedom against a defendant’s right to a fair trial. Instead, the top court produced a rare 4-2-1 split decision.

The case involved a Toronto woman -- identified only as "N.S." -- who accused her cousin and uncle of repeatedly sexually assaulting her over a four-year period when she was a child. She wanted to testify against them in court, but also wanted the right to wear her religious veil while doing do.

N.S. wears a niqab -- a veil that covers her face so that only the eyes can be seen through a slit. She said her Muslim faith dictates that she wear the veil in public and that she wouldn’t testify without it.

The two defendants, meanwhile, claimed the Charter of Rights allows them to confront their accuser and observe her facial expressions. They said they needed to see the accused's face so they could assess her demeanour, which they said was key to defending themselves.

Writing for the majority, Chief Justice Beverley McLachlin said the decision on whether to allow the face-covering must be made on a case-by-case basis and that judges would have to consider four questions before deciding whether to order a witness to remove her veil.

One of those questions would be whether permitting the witness to wear the niqab while testifying would create a serious risk to trial fairness. They would also have to consider whether there was a way to accommodate both the rights of the witness and the rights of the accused to see their accuser, to avoid a conflict.

If there weren’t, McLachlin said, a trial judge would be allowed to order a witness to remove his or her veil.

The Supreme Court said that in cases where the liberty of the accused is at stake, “the witness's evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab."

That decision leaves it open to a judge to allow witnesses whose credibility is not central to the case to continue to wear their veils.

The decision means the N.S. case will have to go back to the Ontario trial judge who started hearing the preliminary trial and who first ordered N.S. to remove her veil.

But two other justices, Marshall Rothstein and Louis LeBel, disagreed with McLachlin’s take on the case. They said that the principle of openness of the trial process requires that niqabs never be worn on the witness stand.

Justice Rosalie Abella, meanwhile, dissented completely, saying forcing a witness to remove her niqab is “a significantly more harmful consequence than the accused not being able to see a witness’s whole face.”

She said such a requirement would likely result in witnesses refusing to testify or bring charges in the first place. It could also mean that she would be unable to testify in her own defence if she were the accused.

“Unless the witness’s face is directly relevant to the case, such as where her identity is in issue, she should not be required to remove her niqab,” Abella wrote.

David Butt, the lawyer who represented N.S. said his client is “thrilled with the fairness, and the balance the Supreme Court has shown.”

 

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Example 7 - Code right v. Code right: Civil marriage commissioner and same-sex couple

Civil marriage commissioner and same-sex couple

A civil marriage commissioner objects to performing a marriage ceremony for a same-sex couple, claiming that it violates his religious beliefs. He claims that under the Code, he has the right to be free from discrimination based on religion in employment. The couple wishing to receive the service claims that their right under the Code to be free from discrimination because of sexual orientation in services is being breached.

Photo, two smiling men hold hands as another looks on in disapproval.

 

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Quiz - Examples of Competing Rights Situations

Transcript
Competing Human Rights eLearning Module 3 Quiz

NARRATEUR:

Welcome to the quiz for Module 3.

You will be given a series of scenarios with questions, to check your learning. Let’s get started!

Scenario #1:

Marga uses a wheelchair and works on the second floor of her company’s office building. The building has an elevator, but no ramps, so Marga has to go through the commercial garage to get inside. Marga asked her employer to accommodate her disability with a ramp to the main doors, so that she can come and go like everyone else. Her employer says that building a ramp is too expensive and would hurt the business. Is this a competing rights case?

Yes: Marga has a Code right not to be discriminated against because of her disability, and the employer has a right to run an efficient business.
No: only Marga is making a claim of discrimination. The employer has a legal duty to accommodate Marga’s disability, unless it can show that this would cause undue hardship.

Scenario #2:

Mansur is a taxi driver employed by a taxi company. He is allergic to dogs. One day Max, who is blind, tries to enter Mansur’s taxi with his guide dog. Mansur refuses to let him into the taxi and tells Max that he can’t serve him because he’s allergic to dogs. Is this a competing rights situation?

Yes: Mansur has a Code right to be free from discrimination at work because of his disability, and blind customers have a Code right not to experience discrimination in services because of their disabilities.
No: Customers with disabiltiies can easily get another cab, so this is not really a violation of their Code rights.
No: Customers who use guide dogs have a Code right not to be discriminated against because of their disability, but Mansur does not have Code rights in this case because he is obliged to follow his employer’s rules

Scenario #3:

Sandeep has just started working as a security officer for a private security company. As part of his religion, Sandeep wears a turban. His manager has told Sandeep not to wear his turban at work, because it is not part of the standard uniform. He also said that wearing a turban might pose safety risks, though he did not name any specific dangers. Is this a competing rights case?

Yes: Sandeep has a Code right to wear his turban, and his employer has a right to preserve the traditional uniform.
No: When Sandeep is at work, he must conform to his employer’s standards.
No: Sandeep has a Code right to wear his turban, and his employer has a duty to accommodate Sandeep’s religious requirements, up to the point of undue hardship.

Competing Human Rights eLearning
Transcript at http://ohrc.on.ca/en/learning/elearning/competing-human-rights/part-3/quiz

Transcript
Competing Human Rights eLearning Module 3 Quiz

NARRATEUR:

Welcome to the quiz for Module 3.

You will be given a series of scenarios with questions, to check your learning. Let’s get started!

Scenario #1:

Marga uses a wheelchair and works on the second floor of her company’s office building. The building has an elevator, but no ramps, so Marga has to go through the commercial garage to get inside. Marga asked her employer to accommodate her disability with a ramp to the main doors, so that she can come and go like everyone else. Her employer says that building a ramp is too expensive and would hurt the business. Is this a competing rights case?

Yes: Marga has a Code right not to be discriminated against because of her disability, and the employer has a right to run an efficient business.
No: only Marga is making a claim of discrimination. The employer has a legal duty to accommodate Marga’s disability, unless it can show that this would cause undue hardship.

Scenario #2:

Mansur is a taxi driver employed by a taxi company. He is allergic to dogs. One day Max, who is blind, tries to enter Mansur’s taxi with his guide dog. Mansur refuses to let him into the taxi and tells Max that he can’t serve him because he’s allergic to dogs. Is this a competing rights situation?

Yes: Mansur has a Code right to be free from discrimination at work because of his disability, and blind customers have a Code right not to experience discrimination in services because of their disabilities.
No: Customers with disabiltiies can easily get another cab, so this is not really a violation of their Code rights.
No: Customers who use guide dogs have a Code right not to be discriminated against because of their disability, but Mansur does not have Code rights in this case because he is obliged to follow his employer’s rules

Scenario #3:

Sandeep has just started working as a security officer for a private security company. As part of his religion, Sandeep wears a turban. His manager has told Sandeep not to wear his turban at work, because it is not part of the standard uniform. He also said that wearing a turban might pose safety risks, though he did not name any specific dangers. Is this a competing rights case?

Yes: Sandeep has a Code right to wear his turban, and his employer has a right to preserve the traditional uniform.
No: When Sandeep is at work, he must conform to his employer’s standards.
No: Sandeep has a Code right to wear his turban, and his employer has a duty to accommodate Sandeep’s religious requirements, up to the point of undue hardship.

Competing Human Rights eLearning
Transcript at http://ohrc.on.ca/en/learning/elearning/competing-human-rights/part-3/quiz