The federal government and all Canadian provinces and territories have human rights laws with agencies to enforce their legislation. However, not all offer the same human rights protections. For example, not all provinces protect people because of their political beliefs or social condition.
The Canadian Charter of Rights and Freedoms
All human rights legislation must follow the Canadian Charter of Rights and Freedoms, passed in 1982. Section 15(1) of the Charter states: “Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination...”
An individual can only use the Charter to challenge a governmental decision, action or law (such as the Ontario Code) on the grounds that it does not offer the protection to individuals provided by the Charter.
An example of a successful challenge of the Ontario Code occurred in 1992 in a case known as Leshner v. Ontario. The Code defined “marital status” as limited to persons “of the opposite sex.” This was found to violate Section 15(1) of the Charter. A tribunal ruling directed that, in future, the definition of “marital status” omit the words “of the opposite sex.”
Minority language educational rights
The Charter also provides that Canadian citizens whose first language of English or French is the minority language where they live, or who were educated in the primary grades in English or French in Canada and live in a province where that language is a minority, have the right (where numbers warrant) to have their children receive primary and secondary school instruction in their language and in minority language educational facilities. In Ontario, the Education Act further guarantees that minority language education will be provided regardless of whether numbers warrant or not.
In Canada, francophones have often experienced prejudice and discrimination in the workplace, in school and in their communities. Generally, human rights legislation has not offered protection explicitly based on language. Quebec and the Yukon Territory are the only Canadian jurisdictions that specifically identify language as a prohibited ground of discrimination in employment. The Human Rights Tribunal of Ontario has accepted language-based applications under the related grounds of “ancestry,” “ethnic origin” and “place of origin.”
The Canadian Human Rights Act
The Canadian Human Rights Act was passed in 1976. While its intent is similar to provincial legislation, its jurisdiction covers services, agencies and organizations regulated by the federal government, including those in the banking, communications and transportation sectors and crown corporations (such as the Canadian Broadcasting Corporation). It provides protection against discrimination on many of the same grounds as the Ontario Code.
The Canadian Human Rights Act is enforced by the Canadian Human Rights Commission, which has offices in all regions of the country.
The Ontario Human Rights Code
The Ontario Human Rights Code has primacy—or takes precedence—over all other legislation in Ontario unless that legislation specifically states that the Code does not apply. For example, if a requirement in the Education Act governing Ontario public schools is found to discriminate against individuals or groups protected under the Code, the Code would prevail if it could not objectively be proven that the requirement was necessary and would cause undue hardship if removed from the Act. The same would be true of conflicting requirements under the Occupational Health and Safety Act. An example of where the Code does not apply is when persons with certain disabilities (such as uncontrolled seizures) are prohibited from driving under the Highway Traffic Act.
What human rights legislation does
The main intent of human rights legislation is to remedy the situation for the person or group discriminated against and prevent further discrimination—the intent is not to punish the individual or company that has discriminated.
The Ontario Human Rights Code provides for civil remedies, not criminal penalties. Persons or companies found to have discriminated are not sent to jail but can be made to compensate an applicant or make changes in the way they operate.
One major difference between human rights legislation and criminal law lies in the different standards of proof applied to evidence at a tribunal hearing. In criminal law, allegations must be proven beyond a reasonable doubt. The standard of proof under the Code, as in civil law, is on the balance of probabilities. In other words, did the discrimination more likely occur than not? The applicant has the responsibility to prove the allegations. Once discrimination has been proven to have occurred, then the respondent must prove that there is a bona fide reason behind the actions and that to accommodate would result in undue hardship.