In keeping with the Commission’s mandate to promote understanding of human rights and encourage research to eliminate discriminatory practices, the Commission undertook a number of policy development initiatives in 1999-2000. Several consultations took place and discussion papers were released to the public on emerging policy areas. Several policies were updated and new ones were introduced. The purpose of these policies and guidelines is to help Commission staff, members of the public and those involved in human rights to understand and interpret how the Code applies. Highlights of the past year are outlined below.
Pregnancy and Breastfeeding
Under Section 10 (2) of the Code, the “right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.” Birth and breastfeeding are natural parts of child rearing and are integrally related to the ground of sex. Refusing or denying a service to a woman who is pregnant or is breastfeeding violates the Code on the ground of sex.
In February 1999, the Commission settled a complaint related to an incident involving a woman who was breastfeeding her child in a restaurant and was asked by restaurant management to stop breastfeeding, to move to the restaurant’s washroom or to leave the restaurant. A key element of the settlement included a request by both the complainant and the respondents that the Commission develop an explicit policy regarding the rights of women to breastfeed in public, if they so choose. This includes the right not to be disturbed or denied access to services. Breastfeeding mothers have the same right to avail themselves of services, without discrimination, as all other people in Ontario.
As a result of the settlement, the Commission clarified and expanded its interpretation of the right of women to breastfeed and revised its Policy on Pregnancy to reflect the protection of breastfeeding in public areas. The Commission also developed a plain language version of its Policy on Pregnancy as well as a flyer entitled, Your Rights as a Nursing Mother. Both were distributed to public health units and midwives’ associations across the province during National Breastfeeding Week in October 1999. The right to be accommodated at work is also part of the Policy on Pregnancy.
On May 20, 1999, the Supreme Court of Canada decided in M. v. H that the opposite-sex definition of "spouse" in Part III of Ontario’s Family Law Reform Act was unconstitutional. As a result, the Ontario Government introduced Bill 5, An Act to amend certain statutes because of the Supreme Court of Canada decision in M. v. H. to include the ground of same-sex partnership status. The Act amends 67 Ontario statutes, including the Code. The Commission’s public policy statement on sexual orientation was released this year entitled, Policy on Discrimination and Harassment because of Sexual Orientation. It incorporates the changes made by Bill 5 and provides clear directions on the equality of persons in Ontario regardless of sexual orientation.
Released in February 2000, the Policy sets out how the Code protects against discrimination and harassment because of sexual orientation. It is designed to improve understanding of issues related to sexual orientation. In particular, the Policy can be used by employers and providers of services and accommodation to better understand their responsibilities under the Code and the need to provide equal treatment to all Ontarians.
The Chief Commissioner has written to the Attorney General with respect to some of the statutes amended by Bill 5 and other Ontario laws of potential relevance to same-sex partners. The Chief Commissioner has raised several issues in relation to these laws such as substantive equality, the dignity of individuals in same-sex relationships and compliance with the Code.
Misunderstanding and lack of awareness of the issues faced by transgendered people occur throughout society. Two years ago, in March 1998 at a conference held by the International Foundation for Gender Equality, the Chief Commissioner made a commitment that the Commission would undertake policy development in consultation with the transgendered community. Research, consultations and meetings were then conducted with the transgendered community, selected officials and health professionals.
Following these consultations, the Commission developed a discussion paper entitled Toward a Commission Policy on Gender Identity. This paper was released in October 1999 to members of the transgendered community and stakeholders associated with this issue.
Based on feedback received, the Commission approved a formal policy statement based on the discussion paper, Policy on Gender Identity. The Policy is based on the work done to date which includes research, community consultations and interviews with selected officials and health care professionals and a review of significant case law in this area. The document outlines the major barriers and issues that face transgendered persons.
Although the number of complaints in this area is relatively small, the discrimination, harassment and social stigma experienced by transgendered individuals is significant. In developing this policy, the Commission aims to promote awareness of gender identity, to dispel stereotypes and myths, and to prevent discrimination and harassment against individuals because of their gender identity.
Guidelines for Assessing Accommodation Requirements for Persons with Disabilities
The Commission introduced its Guidelines for Assessing Accommodation Requirements for Persons with Disabilities in 1989. Since that time, the Guidelines have not undergone any revisions despite several key legal developments and emerging issues.
As a result, the Commission conducted extensive consultations with approximately 150 stakeholders to evaluate the need for revisions and to seek views on proposed revisions to the Guidelines. Consultees included disability consumers and organizations, employer communities, educational institutions, law firms, labour, provincial and municipal government agencies, business and trade associations and service providers.
The Commission also sought views on two specific policy issues. The first issue was the interpretation of the “undue hardship standard” in light of the reasonableness standard set out in the 1997 Eldridge v. British Columbia (Attorney General) decision, and second, the “voluntary assumption of risk”. This second issue arises when a person with a disability voluntarily assumes a health and safety risk (after accommodation) to himself or herself alone.
Viewpoints were varied. Members of the disability community supported the current standard of undue hardship and accommodation standards as set out in the Code. Representatives of the business and employer communities, however, felt that the cost standard was too onerous. They preferred to support a standard based on “reasonableness” as well as a revision of the measurement of cost. Educational service providers, while supportive of the undue hardship standard, felt that factors other than cost should determine undue hardship. Members of the deaf community indicated that governments, which are often the only sources of funding for accommodation, have a duty to accommodate and should not qualify for an undue hardship exemption.
Stakeholders also raised a number of other issues. These included the definition of “essential duties”, accommodation in pre-injury work or other work, the interaction of other legislation with the Code dealing with employee rights and general health and safety issues, the lack of integration of arbitration decisions in the labour context into human rights analysis, and the vulnerability of workers with disabilities in non-unionized workplaces.
The overwhelming response to the Commission’s consultations shows that stakeholders rely upon the Guidelines for directions in fulfilling the obligation to accommodate in a variety of situations. The Commission intends to release a revised version of the Guidelines next year. The revised version will assess the implications of decisions made by courts and boards of inquiry over the last decade and take into account their impact on the standards set out in the Guidelines. The Guidelines will also provide employers with more specific guidance on the accommodation process.
Public Transit Accessibility Survey
As part of its ongoing commitment to disability issues, in 1999-2000, the Commission undertook a survey of the current efforts and future plans of major transit commissions in Ontario municipalities to make their systems accessible to persons with disabilities. Findings from the assessment will enable the Commission to determine current and future policy developments in the area of disability accommodation, with particular focus on transportation services.
In light of a 1997 Supreme Court of Canada decision, the Commission promotes an integrated approach to public transit as a basic social requirement. In practical terms, this means that municipalities should try to make their standard transit systems as accessible as possible, and in situations where some users still cannot access these facilities, even after accommodation, to provide other para-transit options, such as Wheel Trans. In both cases, the standard is accommodation to the point of undue hardship. The Commission will be releasing a survey on the accessibility of public transit systems in Ontario next fiscal year.
Discussion Paper on Age Discrimination
The Commission prepared a discussion paper on age discrimination in 1999-2000, following the designation of the United Nations’ International Year of Older Persons in 1999. The paper, which was developed as part of the Commission’s mandate to develop policy on the major grounds in the Code, explores human rights issues facing older persons in Ontario in the areas of employment, housing and services and facilities. It reviews demographic trends, broader social and economic issues related to age discrimination, case law and the types of cases coming to the Commission through complaints. The paper will form the basis for public consultation prior to developing a formal public policy on this issue over the next two years.
Discussion Paper on Insurance
As part of its mandate under the Code to promote awareness and understanding of human rights, the Commission initiated a research project to examine human rights issues in the insurance industry.
In 1992, the Supreme Court of Canada in Bates v. Zurich Insurance encouraged the insurance industry to look more closely at non-discriminatory alternatives in rate setting in the auto industry. It ruled that the insurance industry could continue to use discriminatory criteria, such as age and marital status as a bona fide means of assessing risk, but that the industry might not be able to do so indefinitely.
In light of these comments and the relative scarcity of human rights analysis on the insurance industry in Ontario, the Commission developed a Discussion Paper, released in October 1999, to initiate dialogue on protecting human rights in insurance and to examine alternatives to current practices through consultation with industry representatives, regulators and consumers. This paper reviews insurance-related legislative authority, provisions of the Code and discusses issues of discrimination in insurance.
As part of the consultation, the Commission received a number of submissions and met with several representatives from the life, disability and auto insurance sectors. The Commission will release the Consultation Report this coming year and correspond with key stakeholders on issues raised during the consultation. One of the key directions of the Report is that the Commission recommend that industry, government and consumer sectors jointly establish a mechanism to further promote dialogue on human rights issues in insurance.
In February 2000, the Commission, in partnership with the Canadian Human Rights Foundation, held a first-ever one-day Policy Dialogue entitled Human Rights Commissions: Future Directions. The session’s goal was to bring together a diverse range of Canadian and international stakeholders to analyze the way in which human rights institutions, civil society and government work together to identify issues, developments and challenges in the field of human rights and to generate strategies for the future.
Representatives from the Ontario Human Rights Commission, other Canadian human rights commissions, the Ontario government, and human rights non-governmental agencies (NGOs) took part in the event. As well, we were privileged to have in attendance the Special Advisor on National Institutions from the Office of the High Commissioner for Human Rights in Geneva, a representative from the Canadian Human Rights Act Review Panel, a member of the UN Human Rights Committee, a Canadian Senator and several distinguished human rights experts and academics.
The session provided participants with an opportunity to discuss social trends and international developments and to examine the impact of these trends and developments on the role of human rights commissions. Some of the emerging issues that were identified included economic and social rights, alternative dispute resolution and the complaints-based model as a means for addressing systemic discrimination. Also discussed was the role of human rights commissions in ensuring Canada fulfills its international human rights obligations, as contained in the international conventions, treaties and protocols it has ratified. Such information sharing will help Canadian human rights commissions to respond better to societal changes in Canada, and to develop strategies that will enable commissions to play a greater role in the protection and promotion of human rights in the future.
Promoting human rights is an equally important part of the Commission’s mandate. Section 29 of the Code outlines the wide-ranging functions of the Ontario Human Rights Commission, and includes its responsibilities with regard to public education. In particular, Section 29(d) requires the Commission to “develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under this Act”.
Last year, Commission staff participated in 108 public education events and delivered education and training to over 8,600 people, almost double and triple the numbers from the past two years (4,500 and 3,000, respectively), making 1999-2000 one of the most active years in the area of public education. Key activities included:
- keynote addresses at conferences of the Association of Municipalities in Ontario (AMO), Ontario Hydro, Citizenship and Immigration Canada, the Human Resources Professionals Association, and colleges and high schools;
- taking part in a youth anti-racism conference in Sioux Lookout that brought together Aboriginal and non-Aboriginal youth from across northwestern Ontario to discuss strategies relating to the elimination of racism in their communities;
- presentations to disability groups in Sudbury and Kirkland Lake, small business owners in Kirkland Lake and Timmins, municipal employees in Windsor and the Ontario Association of the Deaf in Toronto;
- participation in information fairs for job seekers with disabilities in Toronto and Brampton, for human resource practitioners in Toronto, Durham and Ottawa, and for the general public at multicultural fairs in Milton and Ajax, as well as attendance at the 1999 Lesbian, Gay, Bisexual, Transsexual and Transgender Pride Week; and
- training of call centre staff at the Ministry of Labour.
In 1999-2000, the Commission also developed a second three-year public education strategy to build on the first one, which came to an end as of March 31, 2000. The new strategy entitled, Getting the Message Out, sets out the course for the Commission’s public education activities for the next three-year period from April 1, 2001 to March 31, 2003. In particular, the new strategy focuses on increased public education activity in the education and employment sectors, greater use of thematic campaigns, and involving more staff and key stakeholders in the delivery of public education.
Partnerships have proven to be successful as a means of enhancing the Commission’s public education efforts. The Commission’s first public awareness campaign on sexual harassment was held in 1998. Last year, the Commission conducted a second province-wide campaign on sexual harassment on public transit vehicles throughout Ontario and expanded the campaign to liquor control board outlets. Both campaigns were conducted with private, not for profit and public sector partnerships.
The Commission also partnered with a francophone women’s non-governmental organization, the Réseau des femmes du sud de l’Ontario, to raise awareness of the practice of female genital mutilation (FGM). This practice has been recognized not only as a health hazard and a form of violence against women and girls, but also as a human rights issue under international law. Many women living in Ontario come from areas or countries where FGM is practiced. Working with the Réseau, the Commission developed a brochure addressing this important women’s issue based on its existing “Know Your Rights” series. The brochure was published in English, French, Arabic, Somalian, Swahili and Amharic and was distributed to women’s groups throughout the province.
During the past year, the Commission also partnered with the Council of Agencies Serving South Asians to develop a seminar on access to professions and trades for foreign trained professionals. Policy work in this area is under way as is the development of a multilingual plain language version of the Commission’s Complainant’s Guide in four South Asian languages: Hindi, Tamil, Punjabi and Gujarati.
The Commission also participated again as a major partner in the second Toronto Human Rights Film and Video Festival, ‘Rights on Reel’, held in December 1999.
In 1999-2000, the Commission also worked on the development of a teaching resource on ‘Human Rights and Disabilities’. This section is part of the updated disability awareness resource teacher’s manual entitled, Discover Together, and makes use of some of the resources already developed in the Commission’s Teaching Human Rights in Ontario. The manual is designed to help teachers introduce non-disabled students to a variety of disability issues and to increase their awareness of the abilities of people with disabilities. The package has been recently re-released by the Equity Department of the Toronto District School Board and is being distributed to all elementary schools in the Toronto District School Board.
In the area of publications, the Commission also launched a new series of colourful plain language guides on several major policy areas. Key among these was Human Rights at Work, a publication that addresses workplace issues such as: accommodating persons with disabilities, anti-discrimination and harassment policies, rights for pregnant employees and benefits for same-sex partners. The guide is easy to understand and provides employers with practical information, including a list of prohibited interview questions and a sample job application form. Others in the series include, Protecting Religious Rights, Guide to the Human Rights Code, Hiring? A Human Rights Guide and Pregnancy: Before, During and After: Know Your Rights, and a ready reference to the most recent version of the Code.
The Commission also released a second edition of Human Rights Policy in Ontario, an up-to-date compilation of all the Commission’s existing and new policy work, and produced Human Rights at Work, a first-ever manual for employers on human rights in the workplace.
An Aboriginal Human Rights Program
Under Sections 29 and 14 of the Code, the Commission has a statutory duty to promote and advance awareness of human rights and to allow for special programs that promote equality of opportunity. Aboriginal peoples’ human rights have been identified repeatedly as a priority at the provincial, national and international levels as areas of concern. Since Ontario is home to approximately 20% of Canada’s Aboriginal population, there is a need to address the human rights issues that Aboriginal persons face as a result of the cumulative and aggravated effects of economic, social and historical disadvantage and discrimination.
The Commission has put into place a special program as part of its outreach efforts to the Aboriginal community. Given that Aboriginal persons in Ontario file relatively few human rights complaints, many Aboriginal communities have little experience with the provincial human rights process, and are either unaware of the Commission’s services or its ability to serve Aboriginal interests. Others view the human rights process to be unresponsive or irrelevant to the needs of Aboriginal persons. Since the Commission has no sustained or corporate presence in Ontario’s Aboriginal communities, the Commission developed a Request for Proposals to develop a special program for Aboriginal persons.
The program’s goals include enhancing awareness among Aboriginal persons of the protections contained in the Code, developing appropriate and culturally-sensitive mechanisms for accessing the Commission’s services and developing a sustained corporate Commission presence within Aboriginal communities and organizations.
The proposed 18-month program will begin in June 2000. First steps will involve researching best practices for public education and awareness in Aboriginal communities, conducting a needs assessment and establishing formal partnership(s) with selected organizations that are representative of Aboriginal communities.
National and International Initiatives
The Commission provides input to Ontario’s submissions to reports prepared by Canada in accordance with Canada’s obligations under international conventions. The Commission’s comments highlight relevant legislative, judicial and administrative policies, programs and activities during the given reporting period as they relate to particular articles in the respective conventions. In September 1999, the Commission prepared comments for consideration on three reports:
- Canada’s 13th & 14th Report on the International Convention on the Elimination of All Forms of Racial Discrimination;
- Canada’s Second Report on the Convention on the Rights of the Child; and
- Canada’s Fifth Report on the Convention on the Elimination of All Forms of Discrimination Against Women.
Canadian Association of Statutory Human Rights Agencies (CASHRA)
CASHRA’s membership includes all the human rights commissions and fair practices offices in each of the 10 provinces, 3 territories and the federal government. During the 1999-2000 fiscal year, the Commission led a joint effort of representatives of CASHRA member agencies to develop an educational initiative that highlights every person’s responsibility to ensure that human rights are respected in the workplace. This poster will be launched at the CASHRA 2000 Conference in May 2000.
International Delegations and Visitors
As part of its responsibility to promote human rights, in 1999-2000, the Commission hosted a number of delegations and visitors from around the world including Sri Lanka, India, Japan, Chile, South Africa and Nigeria. Several of these visits related to the establishment or strengthening of human rights commissions, information-sharing and technical co-operation.