Many disputes in which there appears to be a conflict of rights will be revealed, upon closer examination, to be situations in which the resolution of the dispute is not contingent upon the complex process of balancing. Given the difficulties associated with the balancing process, it is imperative that only actual conflicts of rights are approached as balancing tasks. This section of the paper will briefly outline factors for assessing the extent to which competing rights are the real issue at stake. In particular, before proceeding to the task of balancing, careful consideration must be given to three key questions:
- Are the rights claims characterized appropriately?
- Are valid, legally recognized rights at stake?
- Are the needs of both parties truly in conflict?
A ‘no’ response to any one of these questions will mean that wading into the murky territory of balancing conflicting rights is not required. Instead, the competing claims will either be dismissed as inappropriate or invalid, or conflict management will occur through informal accommodation.
In any apparent conflict of rights case the appropriateness of the claim must be considered. Utilizing a conflict of rights analysis as a defence is common, however, the number of cases in which there may be an actual conflict will be much rarer. The use of a conflict of rights defence may be a mischaracterization of the issues. In order to test this characterization, it is important to ask whether or not the dispute actually engages two equally valid rights claims. The conflict may be framed as one of competing rights, but this framing is only appropriate if the claims are actually linked to protected grounds under the Code or Charter.
For instance, it is a long established principle in human rights law that customer preference cannot be used to justify a discriminatory act. Customer preference, however, may be the driving force behind complaints that, on their face, seem to engage a conflict of rights. One way of testing whether or not this is the case is to carefully delineate the rights at stake. A particularly cogent example of framing customer preference within the language of competing rights may be seen in objections to breastfeeding in public spaces. Organizations and individuals objecting to this practice have frequently asserted that they have a ‘right’ to request that a woman cover herself, move to a private area, and so forth. This right has sometimes been grounded in a freedom of expression claim as a way of legitimizing these requests as a valid human rights issue.
At first glance, then, there appears to be a conflict between freedom of expression and freedom from discrimination based on sex. But a careful consideration of whether or not the rights claims are appropriately characterized tells a different story. Court and Tribunal decisions have clearly established a woman’s right to breastfeed in public. Importantly, these decisions have concluded that actions which prevent a woman from breastfeeding in public are discriminatory. These precedents mean that in the absence of a compelling, equally valid discrimination claim, a woman has an unqualified right to breastfeed in public. The freedom of expression claim is not a valid counter-claim because there is no established positive legal right to individual preference. That is, you may air your personal preferences about a woman breastfeeding in public, but you may not use those preferences to compel a woman to stop an activity that is already recognized as an established equality right. In this instance, what amounts to a community standards test for discrimination masquerades as freedom of expression claim. Once this guise is exposed and the actual driving force of the complaint is revealed, there is no need to engage in the task of balancing.
There may be other cases, however, in which the first two questions concerning characterization and validity are answered affirmatively. In these situations, the conflict between competing rights will move to the third level of assessment: Are the needs of both parties truly in conflict? At this stage of analysis, it is important to focus on the specific needs of each party in order to determine whether or not informal accommodation is possible. If it is possible, then there is no need to move to a more formalized balancing.
By way of illustration, consider the following scenario: An individual with a disability uses a service dog in order to perform her work duties as a teacher, but a student in the classroom has her disability (allergies) triggered by the presence of the service dog. The Code requires employers to accommodate the needs of employees with disabilities, and it also requires service providers to accommodate the needs of customers with disabilities. The Code does not prioritize these needs or requirements – one is as important as the other. However, it is possible that these competing rights claims may be resolved by a precise assessment of the needs of both parties.
The employer/service provider would first need to determine the accommodation needs of both the employee and the customer as accurately as possible to determine whether the needs of the two parties are necessarily in conflict. For example, in what ways is the service dog assisting the employee in the classroom? Are there other ways in which that support could be provided without the service dog? The Commission’s Policy on Disability and Duty to Accommodate notes that “if there is a choice between two accommodations which are equally responsive to the person’s needs in a dignified manner, then those responsible are entitled to select the one that is less expensive or that is less disruptive to the organization.” The needs of the student should be similarly evaluated. If the accommodation needs are directly in conflict, then the employer/service provider should explore solutions for accommodating both. In this case, there may be other instructors/sessions with whom the student can study.
While the first two stages of assessment focus on determining the appropriateness and validity of the claims, this third stage of assessment focuses on the specific needs raised by conflicting rights in order to narrow the scope of the conflict. When the precise location of conflict is identified, it may be possible to meet the needs of both parties concurrently without resorting to the complicated process of balancing these equally valid competing claims. Only after these initial three questions have each been answered affirmatively will it be necessary to employ the balancing tools outlined in Section III.
Berry v. Manor Inn (1980) 1 C.H.R.R. D/152.
 See for example, Quebec et Giguere v. Montreal (Ville) (2003) 47 C.H.R.R. D/67.
Supra note 2 at D/153.
 OHRC, Policy and Guidelines on Disability and the Duty to Accommodate (2000) 19.