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Commission-initiated advice, inquiry and complaints

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The Commission favours a voluntary and cooperative approach to protecting and promoting human rights and resolving complaints.  The Commission uses its broad mandate under section 29 of the Code to provide advice to organizations, review legislation for compliance with the Code, and inquire into situations that may have a negative impact relating to a Code ground.

The Commission may also choose to initiate a complaint under subsection 32(2), and use its powers under subsection 33(3) to investigate the matter. The Commission prepares a written report of its findings, and if no settlement is reached, it then decides whether to refer the matter to the independent Human Rights Tribunal of Ontario for a hearing.

Discriminatory Effect of School Discipline Legislation and Policies

This past year the Commission continued its efforts to address the disproportionate impact of the “safe schools” provisions of the Education Act on racialized students and students with disabilities.  In July 2005, following considerable research and the release of a public submission raising concern, the Commission initiated complaints against the Ministry of Education and the Toronto District School Board, alleging that the application of the ”safe schools” provisions and related discipline policies was having a disproportionate impact on these students. While it is paramount to ensure schools are safe, disciplinary measures must be fair, effective and non-discriminatory.

In October 2005, the Commission successfully conciliated a settlement of four similar complaints between individuals and the Dufferin-Peel Catholic District School Board, and in November 2005, it achieved a positive settlement in its own complaint against the Toronto District School Board.  The complaint against the Ministry of Education remained unresolved at year-end.

Restaurant Accessibility

In late 2005, the Commission reviewed the progress of 25 restaurant chains towards commitments they had previously made to increase the accessibility of their premises to customers with disabilities. In 2003 and 2004, the restaurant chains committed to:

  • Develop an accessibility policy and customer complaints procedure
  • Review and identify accessibility barriers across corporate-owned and franchised premises
  • Develop a standardized accessibility plan for future locations
  • Develop a plan for existing facilities and begin removing barriers
  • Monitor progress towards achieving accessibility and report back to the Commission in one year

A report on the outcomes of the restaurant accessibility initiative, including the achievements of the various restaurant chains and recommendations for moving forward, is being prepared for release this year.

As of March 31, 2006, a complaint initiated by the Commission against one restaurant chain remained outstanding.

Discriminatory Effect of the Change of Name Act

The Commission and the Information and Privacy Commissioner/Ontario (IPCO), cooperated in raising concerns with the Ministry of Government Services that the Change of Name Act has a discriminatory impact on transgendered persons. Specifically, a requirement that name changes be published and remain on a publicly accessible record has a disproportionately negative impact on transgendered individuals in that it forces them to publicly disclose their gender transition. The Commission met with the Ministry and the IPCO in November 2005 and again in January 2006, and wrote to the Ministry in February 2006, to clarify how these requirements serve as a barrier for transgendered persons. The Commission has requested both a systemic barrier removal through legislative change, and a more immediate interim accommodation for transgendered individuals who feel threatened by the publication requirement and see it as preventing their access to the name change process.

Accessibility of Driving Schools

The Commission continued to work closely with the Ministry of Transportation and industry partners to address the barriers faced by persons who are deaf, deafened and hard-of-hearing in accessing driving school programs.  In the Fall of 2005, the Commission was able to reach a positive settlement with Young Drivers of Canada in an individual complaint which raised similar concerns.  However, the Commission is continuing to seek a system-wide solution.

Mandatory Retirement

Under the Code, in the area of employment, the legal definition of age is limited to people between the ages of 18 and 65. This means that the Commission cannot receive a complaint of age discrimination in employment from someone who is 65 or older. Following its consultations on age discrimination in 2000[3], the Commission reported that many groups and individuals emphasized the negative impact of mandatory retirement policies on the economic security, dignity and self-worth of older Ontarians. The Commission has since called on government to amend the Code and remove the upper age limit of 65.

In November 2005, the Commission made a submission to the Standing Committee on Justice Policy regarding Bill 211, the Ending Mandatory Retirement Statute Law Amendment Act. In its submission, the Commission commended the government for bringing forward this legislation, and supported its broad intent.  However, the Commission also highlighted grave concerns about provisions of Bill 211 that limit the access of older workers to benefits and worker’s compensation. The Bill, which owes much to the leadership of former Chief Commissioner Keith Norton, takes effect in December 2006. The Commission’s concerns regarding benefits and compensation remain.

The Commission’s work on age discrimination and mandatory retirement received international attention with an invitation to Chief Commissioner Norton to speak at the International Symposium on Age Discrimination in London, England, in September 2005.

Drug and Alcohol Testing

The Commission’s Policy on Drug and Alcohol Testing recognizes that the law identifies dependence on a substance, such as drugs or alcohol, as a form of disability. The Commission provided considerable advice to a major employer in the mining industry regarding its policies for employee drug and alcohol testing, which include random and pre-employment drug testing for all employees.  The Commission worked to encourage compliance with the Code, Policy and current case law, which recognize that pre-employment and random drug tests do not indicate an employee’s current level of impairment or ability to perform their duties, but show only past use. The employer’s policies came to the Commission’s attention through an individual complaint, and the Commission has worked with the employer for over a year in an attempt to resolve the matter.

Accessibility for Homebuyers with Disabilities

The Commission worked with the Ontario Home Builders’ Association (OHBA) to raise awareness in the homebuilding industry about the requirements of the Code and Commission policy with respect to customers with disabilities. This included the publication of an article in the industry’s trade magazine and a presentation at the OHBA’s annual conference. This initiative resulted from a positive settlement with public interest remedies that was reached in February 2005 between Mattamy Homes and a homebuyer who required design modifications to accommodate wheelchair use.

Disability and Education

In July 2005, the Commission met with the Ministry of Education to follow up on the Ministry’s progress in responding to the recommendations contained in the Commission’s 2003 report entitled The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities. As of year-end, the Ministry had yet to provide its responses to the recommendations.

Other Matters

In 2005-06 the Commission also:

  • Met with the government-appointed Hate Crimes Community Working Group to discuss: the links between hate crimes and discrimination and harassment prohibited by the Code; the importance of human rights in developing stronger, safer communities; and how the Commission’s broad mandate, functions, and powers can help address tension and conflict that lead to hate crime.
  • Continued to monitor the use of a medical surveillance form by General Motors, and requested a meeting to discuss ongoing human rights concerns raised by this practice.
  • Wrote to the Minister of Community Safety and Correctional Services regarding recommendations that the proposed Private Security and Investigative Services Act include a statement of principle affirming the importance of the Code, and require private security officers to wear clearly displayed name badges.
  • Sent a letter to school boards across the province to clarify their obligation to continue to provide Educational Assistants and Aides to students with disabilities in the event of a job action, and the necessity to develop plans to ensure that students with disabilities continue to receive accommodation during any work stoppage, so that they have equal access to services and facilities available to other students.
  • Wrote to the Minister of Labour about legislation that simplified union certification processes within the construction sector. The Commission inquired into the Ministry’s rationale for limiting these changes to this relatively non-diverse sector rather than including other sectors in which female and racialized workers predominate, and inquired into possible discriminatory impacts relating to sex and race.

[3] Ontario Human Rights Commission, Time for Action: Advancing Human Rights for Older Ontarians (Consultation Report).


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